Authority for Judicial Review

o Art III never expressly grants the federal courts the power to review the
constitutionality of federal or state laws or executive actions
o However the SC has claimed the power to review the constitutionality of federal and
state laws and executive actions
o Federal courts are courts of limited jurisdiction, 2 primary restrictions on federal
power
o 1) art III of constitution defines the scope of federal court authority, such as the
maximum extent of federal court subject matter jurisdiction
o 2) congress plays an important role in limiting federal court jurisdiction, SC has
held that a federal court may hear a matter only when there is both a constitutional
and statutory authorization
o Marbury v. Madison = authority for judicial review
o Single most important decision in American constitutional law, established the
authority for the judiciary to review the constitutionality of executive and
legislative acts
o The constitution is silent as to whether federal courts have this authority, the
power has existed every since Marbury
o Holding: that the SC could not hear the case as a matter of original jurisdiction,
even though the Judiciary Act of 1789 authorized it, the provision was
unconstitutional because Congress cannot allow original jurisdiction beyond the
situations enumerated in the Constitution
o Marshall likely perceived the case as a unique opportunity: the chance to claim the
power of judicial review, but in a context least likely to draw opposition because
the statue being declared unconstitutional was one which enlarged the judiciary’s
power and that the Jefferson administration was likely to welcome
o Issue 1): Does Marbury have a right to the commission?? Marbury has a right to
the commission because all appropriate procedures were followed
o Issue 2) if so do the laws of this country afford him a remedy? Initial answer was
that “the very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an injury”
 The court drew a distinction as to when the judiciary could afford relief:
the judiciary could provide remedies against the executive when there is a
specific duty to a particular person but not when it is a political matter left
to executive discretion
 “where the heads of departments are the political or confidential agents of
the executive, merely to execute the will of the president, or rather to act in
cases in which the executive possesses a consitutional or legal discretion,
nothing can be more perfectly clear than that their acts are only politically
examinable. But where a specific duty is assigned by law, and individual
rights depend upon the performance of that duty, it seems equally clear tha
the individual who considers himself injured has a right to resort to the
laws of his country for a remedy”
o Issue 3) if so can the SC issue this remedy? Judicial review is only appropriate in
“ministerial acts, where the executive had a duty to perform” and not in political
 acts within the discretion of the executive
 Where the head of departments are directed by law to do certain acts
affecting the absolute rights of individuals it is not perceived on what
ground the courts of the country are further excused from the duty of
giving judgment that right be done to an injured individual
 Some matters such as whether to veto a bill or who to appoint to an office
are entirely within the president’s discretion and cannot be judicially
reviewd
 But where the executive has a legal duty to act or refrain from acting, the
federal judiciary can provide a remedy including a writ of mandamus

Executive Privilege: the ability of the president to keep secret conversations with or
memo to or form advisors
o Constitution does not mention this authority but presidents have claimed it
throughout history
o Seen necessary for presidents to receive candid advice, protect national security,
justifying broad presidential power in the realm of foreign affairs
o Did not consider the constitutionality and scope of executive privilege until United
States v. Nixon
 Burglary at Democratic National Headquarters in Watergate building,
burglars were connected to the campaign to re-elect the president and high
level white house officials were involved in a cover-up
 Whether you can subpoena the president to turn over “confidential”
conversations for a criminal trial
 Holding: court rejected argument that it was a nonjusticiable political
question because it was an intra branch dispute and the pres alone ahd
authority to control prosecutions, the president has the power to delegate
this power and he had done so through the actions of the attorney general
by creating the office of the special prosecutor
• Court made 3 major points on issue of executive privilege: 1) it is
the role of the court to decide whether the president has executive
privilege and if so its scope, 2) recognized the existence of
executive privilege, recognizing the need for candor in
communications with advisors justified it and privilege derives
from the supremecy of each branch within its own assigned area of
constitutional duties, 3) executive privilege is not absolute but must
yield when there are important countervailing interests, “neither the
doctrine of separation of powers nor the need for confidentiality of
high level communications, without more can sustain an absolute
unqualified presidential privilege of immunity from judicial process
under all circumstances”
• Recognized executive privilege as an inherent presidential power
• Court concluded that the need for evidence at a criminal trial
outweighed executive privilege, and that allowing the privilege to
withhold evidence that is relevant to a criminal trial would cut
 deeply into the guarantee of due process of law and gravely impair
the basic function of the courts
o How do you go about interpreting the constitution? Usually judicial activism =
liberal (at least that is what people believe) but you want to avoid thinking
categorically, the challenge is always to stay connected to “principle”
o District of Columbia v. Heller
*Question is whether the gun law is constitutional and what do you look at if you are the
judge
*Everyone begins their interpretation by looking at the text of the constitution, usually
the text is not very helpful, so what do you look at now? Intent of the framers by looking
at things such as: fed papers, debates, dictionary, etc, could also look at prior cases,
state constitutions, common usage, original understanding, modern context
*They are reading the same things but coming out in different places, the challenge is to
decide why you like 1 decision over another because they both have merit
*Interpretation will fall somewhere on a continum from originalist to non-originalist, a
justice is more likely to find an individual liberty
*This case is important for the realization that majorities and dissents can take the same
issues, facts and arrive at opposite conclusions

Express and Inherent Presidential Powers, Is There Inherent Presidential Power??

o Art II begins “the executive power shall be vested in a president of the united states of
America” it then enumerates specific powers of the president
o There has always been debate over whether this language was intended to grant the
president inherent powers not expressly enumerated in Art II
o Since art II does not limit the president to powers “herein granted” it is argued tha the
president has authority not specifically delineated in the constitution

Inherent Presidential Power

o Ability of the president to act without express constitutional or statutory authority
o Youngstown:
o Facts: issued an executive order to take possession of steel mills before a strike
could occur – believed the strike would endanger the national defense and war
efforts in Korea
o Seizure deemed unconstitutional
o Justices gave different answers as to when president can act
 1) no inherent presidential power – can only act if there is express
constitutional or statutory authority
• Black’s majority opinion is to deny the existence of any inherent
presidential power, pres power must stem from either an act of
congress or the constitution
• The order to seize was unconstitutional because there is no statute
that expressly authorizes the pres to take possession of property as
he did and no express constitutional language to do this
• Based on belief that inherent authority is inconsistent with a written
constitution establishing a government of limited powers
  2) pres has inherent authority unless it interferes with the functioning of
another branch or usurps the powers of another branch (Douglas explans
this fails with Youngstown because congress did not ratify the spending to
take the mills)
• Pres can act without express statutory or constitutional authority so
long as the pres is not usurping the powers of another branch of
government or keeping another branch from performing its duties
• Douglas argued seizure was unconstitutional because the pres was
forcing the expenditure of federal funds to compensate the steel
mill owners for taking their property and thus impermissibly
usurping Congress’s spending power
• Recognizes the ability of the president to act without express
consituttional or statutory authority so long as the pres is not
infringing or usurping the powers of congress or the courts,
premised on belief that there is a need for the pres to exercise
powers not specifically enumerated in the constitution or granted by
congress
 3) can exercise powers not in constitution as long as pres doesn’t violate a
statute or constitution (Frankfurter: congress explicity rejected giving the
pres the authority to seize industries)
•
 4) inherent powers can’t be limited by statute – only limited by
constitution, meaning federal laws restricting the pres power are
unconstitutional
• Strongest expression of this is seen in UNITED STATES v.
CURTISS-WRIGHT EXPORT CORPORATION
o Involved a congressional authorization permitting the pres
to restrict arms sales to 2 warring latin americna nations,
o In upholding a broad deleation of power to the pres, wrote
“the 2 classes of powers domestic and foreign are different,
both in respect of their origin and nature. The broad
statement that the federal government can exercise no
powers except those specifically enumerated in the
constitution is categorically true only in respect of our
internal affairs”
o Power to conduct foreign policy does not stem from
constitution but is intrinsic to nationality
o Jackson Concurring: 3 zones of presidential authority
 1) when pres acts pursuant to an express or implied authorization of
congress, his authority is at its max, and the acts are presumptively valid
 2) circumstances when the pres acts in absence of either a congressional
grant or denial of authority and relies only upon his own independent
powers, it is a zone of twilight
• Impossible to generate general rules as to the constitutionality of
actions in this area it is likely to depend on “the imperatives of
 events and contemporary imponderable rather than on abstract
theories of law”
 3) when the pres takes measures incompatible with the expressed or
implied will of congress – power is at the lowest
• Only allowed if the enacted law is unconstitutional
 Analysis of presidential power often starts with this 3 part test
o Curtiss-Wright is an example of 4th approach: upheld a broad delegation of power
to pres
 Justice Southerland wrote, “the 2 classes of powers (domestic and foreign)
are different, both in respect of their origin and their nature, the broad
statement that the federal government can exercise no powers except those
specifically enumerated in the constitution…is categorically true only in
respect of our internal affairs”
• Foreign affairs power is not from constitution but intrinsic to
nationality
o No case has made 1 approach correct
Executive Privilege
o Ability of pres to keep secret conversations with or memos to or from advisors
o Constitution makes no mention but all pres have claimed it
o Sometimes justified by: needed for candid advice, protection of national security
o SC considers the constitution and scope of executive privilege in US v. NIXON
o Watergate, whether Nixon could be forced to turn over audiotapes/other material
for a criminal trial – he could
o Holding: 1) role of SC to decide whether the pres has executive privilege and if so
it’s scope, 2) executive privilege recognized as an inherent power, 3) executive
privilege is not absolute is must yield when there are important counterveiling
interests – justified through separation of power
o Important because it recognizes executive privilege but does not make it absolute
o Curtiss-Wright:
o Authority over domestic affairs was possessed by the states prior to the ratification
of the constitution and by approving the constitution they bestowed power on
national government, BUT foreign policy is inherent in the national government
by virtue of it being sovereign

Can Congress Expand Presidential Power?

o What is the extent that congress, by statute, may increase presidential powers beyond
the constitution
o CLINTON v. CITY OF NEW YORK: SC considered the constitutionality of a federal
statute which created authority for a presidential line item veto
o Statute empowered the president to veto (or cancel) particular parts of
appropriation bills while allowing the rest to go into effect, congress could
overturn such a veto by a majority of both houses
o SC declared this statutory increase in presidential power unconstitutional, because
the pres by exercising the line item veto was changing alw adopted by congress,
 the final version of the law is different after the veto than what congress had
passed and the consititution does not allow such presidential authority
o “in both legal and practical effect the president has amended 2 acts of congress by
repealing a portion of each. ‘Repeal of statutes, no less than enactment, must
conform with Art I.’ There is no provision in the constitution that authorizes the
president to enact, to amend, or to repeal statues.”
o Court emphasized that the procedures for enacting an vetoing laws contained in
the constitution must be strictly adhered to and that any changes must come from a
constitutional amendment, not legislative action

The Legislative Veto

Legislative Veto Defined
o In light of the demise of the nondelegation doctrine, the issue arises as to how the
power or administrative agencies will be checked and controlled
o Congress could enact a law overturning an agency’s rule, but requiring legislative
action limits the circumstances in which congress can or will exercise its checking
function
o Congress created the legislative veto as ac heck on the actions of administrative
agencies, by including in statute provisions authorizing congress or one of its houses
or committees to overturn an agency’s action by doing something less than adopting a
new law
o A typical legislative veto provision authorized congress to overturn an agency’s
decision by a resolution of one house, over 200 federal laws contained the provision
Unconstitutionality of the Legislative Veto
o Immigration and Naturalization Service v. Chadha: SC declared the legislative veto
unconstitutional
o Chadha was an east Indian whose visa expired and he was ordered to show cause
as to why he should be allowed to remain in the states, an immigration judge ruled
in favor of him and ordered his deportation to be stayed, but the house of
representatives adopted a resolution overturning the decision and ordering his
deportation
o Federal law gave either house the authority to overturn an INS decision to suspend
deportion
o The SC declared the legislative veto unconstitutional, the opinion can be described
as a syllogism
o Main premise is congress can legislate only with 1) bicameralism (goes to senate
and house) and 2) presentment (giving bill to pres)
o Veto was legislation without either
o It “was essentially legislative in purpose and effect”
o The effect was to “alter the legal rights, activities and relations of persons
including the attorney general, executive branch officials and Chadha
o Court concluded that it was legislation and it did not fit into any of the limited
situations under the constitution where one branch of congress can act alone
o Rejected contention that veto was needed to ensure adequate checks and balances
o White wrote that “without the legislative veto congress is faced with a Hobson’s
 choice: either to refrain from delegating the necessary authority, leaving itself with
a hopeless task of writing laws with the requisite specificity to cover endless
special circumstances across the entire policy landscape or in the alternative, to
abdicate its lawmaking function to the executive branch and independent agencies
o Dispute among justices was over the proper form of analysis in separation of
powers cases, should the evaluation of the constitutionality of the legislative veto
rest entirely on the text of the constitution and the framers intent or should the
court consider the functional justification for legislative vetos
o Clearly establishes that if Congress wants to overturn an executive action there
must be bicameralism and presentment, anything less is unconstitutional

Foreign Policy
Are Foreign Policy and Domestic Affairs Different??
o UNITED STATES v. CURTISS-WRIGHT CORP: a basic question, for which there
is no definitive answer, is whether the pres inherently has greater powers in the area
of foreign policy compared with domestic affairs
o Congress adopted a law that empowered the pres to issue a proclamation making
illegal further sales of arms to the warring nations, the case arose when the court
was invalidating laws pertaining to domestic affairs as impermissible delegations
of legislative power to the executive
o But the court upheld the delegation to the pres to stop munition shipments and
spoke generally of a fundamental difference between domestic and foreign policy
o Sutherland wrote, “the 2 classes of power are different both in respect of their
origin and their nature. The broad statement that the federal government can
exercise no powers except those specifically enumerated in the constitution and
such implied powers as are necessary and propert to carry into effect the
enumerated powers, is categorically true only in respect of our internal affairs”
o Authority over domestic affairs was possessed by the staets before ratification of
the constitution and by approving the constitution bestowed power on the national
government, but as to foreign policy the power is inherently in the national
government by virtue of it being sovereig
o Plus realities of conducting foreign policy require the pres possess much greater
inherent powers than in the realm of domestic affairs
o Curtiss-Wright = court recognizes presidents inherent power over foreign affairs
o Debate over the differences between foreign policy and domestic affairs has
occurred in 2 major areas: 1) treaty making and 2) war powers

Treaties
o If a treaty and statute contradict each other then the last passed will be binding
o Don’t need congressional approval for executive agreements
o Executive agreement = agreement between US and foreign county that is effective
when signed by president and head of foreign nation
 Not found in the constitution but well established they are constitutional
 Can be used for any purpose, anything that can be done by treaty can be
done by executive agreement
  Never has the SC held an executive agreement unconstitutional as usurping
the senate’s treaty approving function
 SC upheld an executive agreement in DAMES & MOORE v. REGAN:
Carter negotiated an agreement with Iran where they would free American
hostages being held in Tehran in exchange for the US lifting a freeze on
Iranian assets in the US
• The executive agreement lifted the freeze and provided for an end
to all suits pending against Iran in US courts
• This agreement was challenged by Dames & Moore who had a suit
against Iran for breach of contract for almost 3.5 million
• The court emphasized that there were a number of federal statutes
authorizing the actions and Rehnquist stated, “because the
president’s actions in nullifying the attachments and ordering the
transfer of the assets was taken pursuant to specific congressional
authorization, it is supported by the strongest or presumptions and
the widest latitude of judicial interpretation, and the burden of
persuastion would rest heavily upon any who might attack it”
• Quoted Youngstown, “a systematic, unbroken, executive practice,
long pursued to the knowledge of the congress and never before
questioned…may be treated as a gloss on “executive power” vested
in the pres by §1 of Art II
o SC has not held that senate must approve recission of a treaty
o Art II, § 2 states that the pres “shall have power, by and with the advice and consent
of the senate to make treaties, provided 2/3’s of the senators present concur” 2 major
issues arise:
o 1) when may executive agreements be used instead of treaties
o 2) what limits, if any, exist on the ability of the president to negotiate or rescind a
treaty?
o A treaty is an agreement between the US and a foreign country that is neogitated by
the pres and is effective when ratified by the senate

o SC held that determination of when war begins or ends is left to branches

o Held recognition of foreign governments is a political question, issues regarding who
represents a foreign state and in what capacity are not justiciable
o No standards in constitution governing recission of treatis
o Most courts deem challenges to war a political question and do not rule on them
claiming a non-justiciable political question
o Political Question Doctrine to Foreign Policy: argued courts are in a poor position
to evaluate constitution of war
 Others argue constitution provisions governing foreign policy are
meaningless without judicial enforcement
 Used to protect political values and ulimtately simply an excuse to not hear
a case
o NIXON v. UNITED STATES: used political question doctrine to hold that challenges
 to impeachment process are nonjusticiable
o Held: Art I § 3 demonstrates a textual commitment of impeachment to the senate,
framers intended for 2 proceedings against officer holders, 1) judicial trial and 2)
legislative impeachment proceedings
o Would also infringe on legislative check on judiciary
o Judiciary will not review senate’s use of a committee to hold a hearing and make a
recommendation on impeachment
o Congress = enumerated (express) or implied powers (i.e. commerce clause)
o States = 10th amendment = “the powers not delegated to the US by constitution, nor
prohibited by it to the states are reserved to the states respectively or to the people”
o HAMDI v. RUMSFELD:
o Congress cedes power to Executive branch to do all necessary to protect against
terrorism
o Issue of executive authority because being held indefinitely through an executive
order because congress gave pres the power to do this
o 2 issues: 1) does the federal government have the authority to hold an Amerian
citizen apprehended in a foreign country as an enemy combatant
 Decided in favor of the government
 Plurality concluded that his detention was authorized pursuant to an Act of
Congress: the Authorization for Use of Military Force that was passed after
September 11, and it was sufficient congressional authorization to meet the
requirements of the Non-Detention Act and permit detaining an American
citizen apprehended in a foreign country as an enemy combatant
• Which states: “no citizen shall be imprisoned or otherwise detained
by the united states except pursuant to an Act of Congress”
 The dissent argued that there is no authority to hold an American citizen in
the United States as an enemy combatant without charges or trial unless
Congress expressly suspends the writ of habeas corpus
o 2nd Issue: what, if any, process must be accorded to Hamdi? The court ruled, with
only Thomas dissenting, that he must be given due process
 Hamdi is entitled to have his habeas petition heard in federal court and
imprisoning is the most basic form of deprivation of liberty and process is
required and procedures required will be determined through the 3 part
balancing test under Matthews v. Eldridge
• Courts weigh the importance of the interest to the individual, ability
of additional procedures to reduce the risk of an erroneous
deprivation and government’s interests
 Court did not specify procedures which must be followed but said he must
be given a meaningful factual hearing
• Minimally includes notice of the charges, right to respond, and
right to be represented by an attorney
• Court did suggest that hearsay evidence might be admissible and
the burden of proof could be placed on Hamdi
 Remanded for determination of what procedural due process requires when
an American citizen apprehended in a foreign country is detained as an
 enemy combatant

War Powers
o Constitution invites contention over who gets to declare and conduct wars
o Art I give congress the power to declare war and authority to raise and support the
army and anvy
o Art II makes the president commander in chief
o Historically executive has used this to send troops to foreign countries without
express approval from congress
o SC dismisses these cases dealing with executive waging war without formal
congressional declaration under the political question doctrine
o SC often remarked that challenges to the conduct of foreign policy present a
nonjusticiable political question
o During Vietnam dozens of cases were field arguing the war was unconstitutional
because there was no declaration of war, all were viewed as nonjusticiable political
questions
o It is also unclear as to what constitutes a declaration of war sufficient to fulfill the
requirements of art I
o It is also unclear as to how Congress can limit the pres’s use of troops in foreign
countries
 War Powers Resolution:
• Congress’ attempt to limit the executive but executive ahs claimed
it unconstitutional, judiciary refuses to hear any case based upon
political question doctrine, so test will be in congress choosing to
cur off funds (which we know they won’t do)
• States that the pres as commander in chief may introduce the united
staets armed forces into hostilities or situations where hostilities
appear imminent only pursuant to 1) a declaration of war, 2)
specific statutory authorization or 3) a national emergency created
by attack upon the united states, its territories or possessions or its
armed forces
• It requires the pres consult with congress where possible before
introducing troops to hostilities and pres report to congress within
48 hours after troops are introduced
• Also requires pres to withdraw troops after 60 days unless congress
has declared war or authorized a 60 day extension or is physically
unable to meet as a result of an armed attack upon the US
• This can be viewed as unconstitutional as an impermissible limit on
the pres power as commander in chief or as constitutional and an
assurance of checks and balances in the crucial area of waging war

Doctrine of Limited Federal Legislative Authority

Congress Must have Express or Implied Powers
o Congress may act only if there is express or implied authority in the constitution,
states may act unless the constitution prohibits the action
o Art I begins, “all legislative powers herein granted shall be vested in a congress of the
united states which shall consist of a senate and house of representatives” and the 10th
amendment states “the powers not delegated to the united states by the constitution
nor prohibited by it to the states are reserved to the states respectively, or to the
people”
o Constitutionality of Any Act of Congress
 Two questions: 1) does congress have the authority under the constitution
to so legislate and 2) if so, does the law violate another constitutional
provision or doctrine (i.e. separation of powers, individual liberties)
o Constitutionality of Any Act of the States
 Does it violate the constitution??
 Only states have police powers = allows the states to adopt a law that is not
prohibited by the constitution, compared to federal which needs to be
enumerated or implied
o Although this focuses on legislative power considerations of separation of powers and
federalism underlie it
o Legislative power can’t be understood without regard to other branches of federal
government
o Federalism is a key recurring issue in defining the scope of congress’s powers
 Alloation between the federal and state governments often is an express
consideration for the SC as it decides whether to narrowly construe
congressional authority or find federal law unconstitutional as infringing
upon state sovereignty
o MCCULLOCH v. MARYLAND = Scope of Congressional Powers: can Maryland
tax the national bank?? No
o Issues: 1) did congress have the authority to make the bank, 2) is the state tax
constitutional?
o 1) = believe that it is the people and not the states that are soveirgn, no enumerated
power to create the bank but the constitution is different than a statute and should
be interpreted differently
 Point is that congress is not limited to the powers enumerated in Art I but
also any means not prohibited by the constitution to carry out those powers
– thus creating a bank
 Adopted that view before even considering the “necessary and proper
clause”
 Art I § 8 “to make all laws which shall be necessary and proper for the
carrying into execution the foregoing powers and all other powers vested
by this constitution in the government of the united states
 “let the end be LEGITIMATE, let it be within the scope of the
constitution and al means which are appropriate which are plaingly
adapted to that end, which are not prohibited, but consistent with the
letter and spirit of the constitution are constitutional”
 Defined necessary as useful or desirable and did not limit with only
indispensable or essential, they used it to enlarge and not diminish
 Marshall made 4 arguments:
• 1) historical practice established the power of congress to create the
bank (Youngstown and Dames & Moore relied upon “the gloss” on
executive power)
• 2) refute the argument that states retain ultimate sovereignty
because they ratified the constitution, this view is sometimes called
compact federalism, sees the states as soverign because they created
the US by ceding some of their power and by ratifying the
constitution
o However, Marshall argued that it was the people who
ratified the constitution, thus the people are sovereign, not
the states, “the government proceeds directly form the
people; is “ordained and established’ in the name of the
people…the assent of the states in their sovereign capacity
is implied, in calling a convention, and thus submitting that
instrument to the people. But the people were at perfect
liberty to accept or reject it and their act was final. It
required not the affirmance, and could not be negatived by
the state governments”
• 3) scope of congressional powers under Art I, important to note that
the court broadly described Congress authority before addressing
the necessary and proper clause
o While the constitution does not list creating a bank as a
power, “ a constitution, to contain an accurate detail of all
the subdivisions of which its great power will admit and of
all the means by which they may be carried into execution,
would partake of the prolixity of a legal code, and could
scarcely be embraced by the human mind”
o “In considering this question then we must never forge
that it is a constitution we are expounding” the point is
that a constitution is different from a statute and should so
be interpreted differently
o Ultimate conclusion is that congress is not limited only to
those acts specified in the constitution, rather congress may
choose any mean, not prohibited by the constitution, to carry
out its lawful authority, so it can make a bank as a means of
carrying out many of its other powers
• 4) the meaning of the necessary and proper clause
o Art I § 8 concludes by granting Congress the power “to
make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other
powers vested by this constitution in the government of the
united states, or in any department or officer thereof”
o Makes it clear that congress may choose any means not
 prohibited by the constitution to carry out its express
authority
o “let the end be LEGITIMATE, let it be within the scope of
the constitution and al means which are appropriate
which are plaingly adapted to that end, which are not
prohibited, but consistent with the letter and spirit of the
constitution are constitutional”
o The contrary view would be that this clause acts to limit
congress powers allowing only laws which are truly
necessary
o Necessary here means useful or desireable, not
indispensable or essential, and its terms purport to enlarge,
not to diminish the powers vested in the government
o But this does not give limitless authority
o 2) = power to create includes power to preserve and power to tax means the power
to destroy and that can render useless the power to create
o McCulloch = 1) no compact federalism, meaning the federal government is
supreme to the states, 2) powers of congress are expansively defined and 3) limits
ability of states to interfere with federal activities
o Youngstown: view that a “systematic, unbroken executive pratice, long pursued to
the knowledge of congress and never before questioned…may be treated as a
gloss on executive power vested in the president”
o Dames & Moore: upheld executive order on a freeze on Iranian assets in US

Commerce Clause
o Art I § 8: “the congress shall have the power…to regulate commerce with foreign
nations, and among the several states and with the Indian Tribes
o Four different eras, in all 4, there are 3 questions to consider: 1) what is commerce, 2)
wheat does among the several states mean, and 3) does the 10th amendment limit
congress
1st Era: Gibbons v. Ogden
o NY ferryboats, monopoly
o “commerce undoubtedly is traffic, but it is something more: it is intercourse. It
describes the commercial intercourse between nations and parts of nations in all its
branches and is regulated by prescribing rules for carrying on the intercourse”
o Gibbons defined commerce as including all phases of business
o “among the states” does not equate to intrastate activities, completely internal activity
is reserved solely to states
o However, if intrastate commerce has an impact on interstate activities then it can
be regulated
o It will require a case by case inquiry – no brightline rule
o Sole check on Congress is the political process, not judicially enforced limits to
protect the states

2nd Era: 1887 – 1937

o Adopted “dual federalism”: federal and state government were separate and each
have separate zones of authority and role of judiciary to protect the state’s zone
o Court narrowly defined “commerce” as holding it to be 1 stage of business distinct
from early phases, such as mining, manufacturing, or production, and only commerce
can be regulated
o Restrictively defined “among the states” only allowing regulation when there was a
substantial effect on interstate commerce
o UNITED STATES v. EC KNIGHT: towards the beginning of this era, the court held
that the Sherman Antitrust Act could not be used to stop a monopoly in the sugar
refining industry because the constitution did not allow congress to regulate
manufacturing
o Government attempted to use the act to block the American Sugar Refining
Company from acquiring 4 competing refineries
o Court held that the federal law did not apply because the monopoly was in the
production of sugar and not in its commerce
o “commerce succeeds to manufacture, and is not a part of it”
o This rigid distinction was based on a need for preserving a zone of activities to the
states, explained that the commerce power was one of the “strongest bonds of the
union…the preservation of the autonomy of the states was required by our dual
form of government”
o Court explained that the effect on commerce was only “indirect” and thus outside
the scope of federal power
o This limited def of commerce continued until 1937
o CARTER v. CARTER COAL CO: court declared unconstitutional the Bituminous
Coal Conservation Act of 1935
o The law had detailed findings as to the relationship between coal and the national
economy and declared that the production of coal directly affected interstate
commerce
o Law provided for local coal boards to be established and determine prices for coal
and to determine after collective bargaining by unions, employers, wages and
hours for employees
o Court focused on constitutionality of federal regulation of wages and hours
o “Commerce is the equivalent of the phrase ‘intercourse for the purposes of trade.’
Plainly, the incidents leading up to culminating in the mining of coal do not
constitute such intercourse. The employment of men, the fixing of their wages,
hours of labor and working conditions, the bargaining in respect of these things –
whether carried on separately or collectively – each and all constitute intercourse
for the purposes of production, not of trade…mining brings the subject matter of
commerce into existence. Commerce disposes of it”
o The decisions in these cases rest upon many assumptions: 1) that it makes sense to
distinguish commerce from other stages of business, 2) the constitution requires a
rigid zone of activities be left to the states, and 3) it is the judicial role to protect this
zone
o The 2nd major aspect of the court’s approach was the requirement that there be a
direct effect on interstate commerce
 o In the SHREVEPORT RATE CASES, the court upheld the ability of the Interstate
Commerce Commission to set intrastate railroad rates because of their direct
impact on interstate commerce
 Specifically a RR was ordered to charge the same rates for shipments to
Marshall Texas whether from Shreveport, LA, or Dallas, TX
• Because, “congress in the exercise of its paramount power may
prevent the common instrumentalities of interstate and intrastate
commercial intercourse from being used in their intrastate
operations to the injury of interstate commerce”
o The distinction between direct and indirect is inherently elusive and difficult to
draw
 ALA SCHECTER POULTRY CORP v. UNITED STATES: “sick
chickens” case declared a federal law unconstitutional based on an
insufficient effect on interstate commerce
• The code required you to purchase the entire coop of chickens,
including the sick ones and regulated employment by requiring
collective bargaining, prohibiting child labor and establishing a 40
hour workweek and minimum wage
• SC declared it unconstitutional because there was not a sufficient
“direct” relationship to interstate commerce
• Court acknowledged that virtually all of the poultry was shipped
from other states, the code was not regulating the interstate
transactions only business in NY
• Court said, “in determining how far the federal government may go
in controlling intrastate transactions upon the ground that they
‘affect’ interstate commerce, there is a necessary and well
established distinction between direct and indirect effects”
 While the key point is that “among the states” was interpreted as requiring
a direct effect on interstate commerce, the court never formulated a clear or
consistent way to distinguish between direct from indirect effects
o Does State Sovereignty Limit Congressional Power? Court held that even if an
activity was commerce and was among the states, congress could not regulate if it
was intruding into the zone of activities reserved to the states
o The 10th amendment reserved control of activities such as mining, manufacturing,
and production to the states
o HAMMER v. DAGENHART (The Child Labor Case): most significant decision
to use the 10th amendment his way
 Federal law prohibited the shipment in interstate commerce of goods
produced in factories that employed children under 14, or between 14 and
16 for more than 8 hours/day or 6 days/week
 While the law only regulated goods in interstate commerce it was
unconstitutional because it controlled production of those goods
 Court declared, “the grant of power to congress over the subject of
interstate commerce was to enable it to regulate such commerce and not to
give it authority to control the states in their exercise of the police power
 over local trade and manufacture”
 “the far reaching result of upholding the act cannot be more plainly
indicated than by pointing out that if congress can thus regulate matters
entrusted to local authority by prohibition of the movement of commodities
in interstate commerce, all freedom of commerce will be at an end, and the
power of the states over local maters may be eliminated and thus our
system of government be practically destroyed”
o CHAMPION v. AMES: court upheld a federal law prohibiting the interstate
shipment of lottery tickets
 Court claimed justification in that power to regulate interstate comemce
includes the power to prohibit items from being in interstate commerce
 Illustrates that court did not consistently define the zone of activities
reserved to the states

3rd Era: 1937 – 1995

o Many different types of pressure mounted for a dramatic change in constitutional law,
the distinction between commerce and other phases of business made little sense in
that mining, manufacturing, and production al had obvious effects on commerce
o The distinction between direct and indirect effects on commerce was inherently
arbitrary and the decisions of the previous era were impossible to reconcile
o Key Decisions Changing the Commerce Clause Doctrine:
o 1) NLRB v. JONES & LAUGHLIN STEEL CORP
 Involved a constitutional challenge to the National Labor Relations Act,
which created a right of employees to bargain collectively, prohibited
unfair labor practices and established the National Labor Relations Board
to enforce the law
 It contained detailed findings on the relationship between labor activity and
commerce
 Court said “the fact that the employees…were engaged in production is not
determinative”
 Court spoke broadly of congress commerce power: “the fundamental
principle is that the power to regulate commerce is the power to enact all
appropriate legislation for its protection and advancement to adopt
measures to promote its growth and insure its safety, to foster, protect,
control and restrain. That power is plenary and may be exerted to protect
interstate commerce no matter what the source of the dangers which
threaten it”
o 2) UNITED STATES v. DARBY: challenged constitutionality of fair labor
standards act of 1938
 This act prohibited shipment in interstate commerce of goods made by
employees who were paid less than the prescribed minimum wage
 In upholding the act the court departed from all aspects of the pre-1937
commerce clause doctrines
 Court rejected the view that production was left entirely to state regulation
 “While manufacture is not of itself interstate commerce, the shipment of
 manufactured goods interstate is such commerce and the prohibition of
such shipment by Congress is indubitably a regulation of commerce”
 Plenary power conferred on congress
 Court expressly overruled HAMMER v. DAGENHART and rejected the
view that the 10th amendment limits congress’s powers
 Rejected view that 10th amendment limits congress’ power and it is a
truism that all is retained which has not been surrendered – in other words
a law is constitutional so long as it is within the scope of congress’s power,
the 10th amendment will not be used by judiciary to invalidate federal law
o 3) WICKARD v. FILBURN: wheat quota, home consumption
 After Wickard there was no doubt that the pre-1937 commerce clause
doctrines had been completely abandoned
 Under the Agricultural Adjustment Act, there was a quota for whate
production and each farmer had an allotment
 His allotment was 222 bushels but he grew 461, he claimed the federal law
could not be applied because the wheat he grew for home consumption was
not part of interstate commerce
 “Questions of the power of congress are not to be decided by reference to
any formula which would give controlling force to nomenclature such as
production and indirect and foreclose consideration of the actual effects
of the activity in question upon interstate commerce”
 Previous era’s distinctions between commerce and production, direct and
indirect would no longer be followed
 Upheld a regulation due to cumulative effect on national market
• Because his wheat was negligible, home grown wheat accounted
for more than 20% so cumulatively home grown wheat had a
substantial effect
o After 1937: from 1937 – 1995 not one federal law was declared unconstitutional
o This test defined commerce clause power expansively
o No distinction between commerce and other stages (mining, production,
manufacturing), congress could exercise power over all phases
o No distinction between direct and indirect effects – regulate anything that
cumulatively has an effect on interstate commerce (after Wickard individual
activity did not need to substantially effect)
o 10th amendment no longer a limit on congressional power
o Can regulate intrastate if necessary to protect regulation of interstate activities
o Court’s broad definition of commerce clause power facilitated a dramatic increase
in the number of regulatory agencies and the scope of their authority
o The court held that congress can set the terms for items shipped in interstate
commerce, even intangible items such as insurance policies or stock
o Congress can regulate purely intrastate activities including all aspects of business
if there is a rational basis for believing that there is an interstate effect or if
necessary to protect its regulation of interstate activities
o HEART OF ATLANTA MOTEL INC v. UNITED STATES: upheld Titl II of Civil
Rights Act which prohibited discrimination by places of public accomodation
 o Hotel had a policy of refusing accommodations to blacks
o Said only questions were: 1) whether congress had a rational basis in finding that
this discrimination affected commerce and 2) if such a basis existed whether the
means selected are reasonable and appropriate
o Discrinimation by hotels impedes interstate travel, and congress’s motive, whether
moral or not did not matter
o KATZENBACH v. MCCLUNG (Ollie’s Barbecue):
o Court upheld same act as Atlanta to a small business
o The court’s decision was not based on the interstate impact of this particular
restaurant, rather that congress rationally had concluded that discrimination by
restaurants cumulatively had an impact on interstate commerce
o Found commerce clause support because cumulatively restaurants who
discriminate sell less interstate goods and interstate travel is obstructed directly by
it, business in general suffers and new business declines to establish itself
o “the power of congress under the commerce clause is broad and sweeping”

4th Era: Commerce Clause after United States v. Lopez

o Between 1936 and April 26, 1995 the SC did not find one federal law
unconstitutional as exceeding the scope of Congress’s commerce power, t
o UNITED STATES v. LOPEZ: SC declared Gun-Free School Zones Act of 1990
unconstitutional
o The act made it a federal crime to have a gun within 1,000 feet of a school
o Ruled that the relationship to interstate commerce was too tangential and uncertain
to have a valid exercise of congress’s commerce power
o Lopez was a 12th grade student in TX, he was arrested for carrying a concealed
handgun
o Current Commerce Clause Definition: 1) regulate the use of channels of
interstate commerce (heart of Atlanta), 2) regulate and protect the
instrumentalities of interstate commerce – includes persons and things, and 3)
those activities having a substantial relation to interstate commerce (caselaw is
unclear as to either “affect” or “substantially affect”
o New requirement is substantially affects
o Court found that the presence of a gun near a school did not substantially affect
interstate commerce and that therefore the federal law was unconstitutional
o Thomas advocated a much narrower view – similar to 2nd era
o Dissent alleged unneeded judicial activism and departing from 60 years of
precedent and supporting “rational basis” review
o UNITED STATES v. MORRISON:
o Issue: whether civil damages provision of the federal act Violence Against Women
Act is constitutional
 It authorizes victims of gnerder motivated violence to sue for money
damages
 Case is brought by a student at Virginia Polytechnic Institute who was
allegedly raped by football players while a freshman
 The players were not criminally prosecuted
 o Reaffirmed same test as from Lopez
 Argued that the violence had a substantial effect on the national economy
 Supported this contention with lengthy legislative history, but court
rejected the argument as insufficient
 Instead emphasized that congress was regulating non-economic activity
that has traditionally been dealt with by the staets
 “simply because congress may conclude that a particular activity
substantially affects interstate commerce does not necessarily make it so”
 If this line of reasoning was accepted it would allow congress to regulate
any crime as long as the nationwide, aggregated impact of that cimr ahs
substantial effects on employment, production, transit or consumption
 “The constitution requires a distinction between what is truly national
and what is truly local”
o Said violence against women – cumulatively – doesn’t meet the substantial effects
test on interstate commerce
o If this rational is accepted then congress could regulate crime across the nation –
“constitution requires a distinction between what is truly national and what is truly
local”
o Thomas Concurring: the test is too broad and malleable – wants a narrower
standard limiting its scope
 “until this court replaces its existing commerce clause jurisprudence with a
standard more consistne with the original understanding, we will continue
to see congress appropriating state police powers under the guise of
reglating commerce”
 Does not want to regulate economic activities based on their cumulative
impact on the economy
o The majority would allow congress to regulate economic activities based upon
their cumulative impact on the economy
o Souter Dissenting: need for judicial deference to congressional fact-finding, courts
role is to review congressional assessment, not for soundness but for rationality of
deciding a jurisdictional basis existed
o Goes further than Lopez by narrowing ability of congress to regulate based on
findings of “substantial effect” on interstate commerce
 In areas that are traditionally regulated by the states congress can’t
regulate non-economic activity based on a cumulative substantial effect
test
o GONZALES v. RAICH = intrastate production of a commodity sold in interstate
commerce is economic activity and thus substantial effect can be based on cumulative
impact
o Court held that Congress constitutionally may use its power to rgulate commerce
among the staets to prohibit the cultivation and possession of small amounts of
marijuana for medicinal purposes
o Stands for the proposition that intrastate production of a commodity sold in
interstate commerce is economic activity and thus substantial effet can be based
on cumulative impact
 o Scalia concurred emphasizing that congress under the necessary and proper clause
has the authority to control intrastate production of goods of a certain type that end
up in interstates commerce

2 Approaches to 10th Amendment

o 1) it is not a separate constraint on congress but a reminder that congress only may
legislate if it has authority under the constitution
o Under this a federal law would never be unconstitutional for violating the 10th
amendment, only invalidated as exceeding scope of congress’ article I powers
o 2) 10th amendment protects states sovereignty from federal intrusion
o acts as protection to states rights and federalism
o Reserves a zone of activity exclusively to the states and federal laws in that zone
should be unconstitutional
o In the 1990’s the court resurrected the view of the 10th limiting congressional power
The 10th Amendment in the 1990’s and Beyond
o Since 1991 only a handful of SC cases relying on the 10th amendment
o NEW YORK v. UNITED STATES: federal law, 1985 Low-Level Radioactive Waste
Policy Amendments Act
o The act created a duty for states to provide for the safe disposal of radioactive
wastes generated within their borders, it created monetary incentives for
compliance and allowed states to impose a surcharge on wastes received from
other states
o The controversy surrounded the part having the states “take title” to any waste
within their borders that were not properly disposed of by January 1, 1996 and
then be “liable for all damages directly or indirectly incurred”
o SC held that congress under commece clause could regulate the disposal of
the wastes, BUT that “take title” was unconstitutional because it gave state
governments the choice between either accepting ownership of waste or
regulating according to the instructions of congress
 Impermissible for congress to impose either option on the states
 Forcing the states to accept ownership would impermissibly
“commandeer” state governments and requiring compliance with
federal regulatory statutes would impermissibly impose a requirement
to implement federal legislation
 It is clear because of the 10th amendment and limits on the scope of
congress’s power under art I the federal government MAY NOT
compel the states to enact or administer a federal regulatory
program
• Allowing this would undermine government accountability,
since congress could make a decision and the states would take
the political heat and be responsible for a decision that was not
theirs
• It appears that if a federal law compels state legislative or
regulatory activity the statute is unconstitutional even if there is
a compelling need for the federal action
 o Central holding is that it is unconstitutional for congress to compel state
legislatures to adopt laws or state agencies to adopt regulations, but congress
may set standards that state and local governments must meet and congress
may attach strings on grants to state and local governments and thus induce
state and local actions it cannot directly compel
o PRINTZ v. UNITED STATES: issue: whether the Brady Handgun Violence
Prevention Act violated the 10th amendment
o The act required that state and local law enforcement officers conduct
background checks on prospective handgun purchasers
o Court found it unconstiutitonal
o Found that congress was impermissibly commandeering state executive
officials to implement a federal mandate
o Reaffirmed New York v. United States
o Court held that congress violates the 10th amendment when it conscripts
state governments
o Scalia went on to add that it violates separation of powers
 Did so by explaining that the constitution vests all executive power in
the president and that congress impermissibly had given all executive
authority to implement the law to state and local enforcement
personnel
o Dissent: “when congress exercises the powers delegated to it by the
constitution it may impose affirmative obligations on executive and judicial
officers of state and local governments as well as ordinary citizens. This
conclusion is firmly supported by the text of the constitution, the early history
of the nation, decisions of this court, and a correct understanding of the basic
structure of the federal government”

The Application of the Bill of Rights to the States

o BOR is the first 10 amendments to the constitution, the first 8 detail protection of
individual rights
o BARON v. MAYOR & CITY COUNCIL OF BALITMORE:
o Facts: Baron sued the city for taking property without just compensation in
violation of the 5th amendment, he claimed that the city ruined his wharf by
diverting streams and made the water too shallow for boats
o Procedural History:
o Issue: whether the takings clause of the 5th amendment applied to the city
(Marshall wrote, “the question is of great importance but not of much
difficulty”
o Holding: that it does not, only federal government action
o Reasoning: petitioner insists that this amendment ought to be construed as to
restrain the legislative power of a state and the US, the constitution was
ordained and established by the people of the US for themselves and their
government not for the government of the states, each state has its own
constitution in which they imposed restrictions upon their governments which
they deemed proper for themselves, the amendments contain no expression
 indicating an intention to apply them to the state governments, thus this court
cannot so apply them
o Wrote: “the constitution was ordained and established by the people of the
united states for themselves, for their own government, and not for the
government of the individual states”
o Now it is disturbing to think states were free to infringe upon individuals most
precious liberties, but at the time it made sense due to faith in state
constitutions which should protect the citizens from this infringement
o Bill of Rights don’t apply to state governments
o Originally there was a trust between the states, individuals, and federal
government, then after the slaves were freed there was a flip in the trust
relationship between the states and individuals and it caused a flip in the 14th
amendments interpretation
o This interpretation was built upon the belief that the citizens could trust the
state government and not the federal government, but following the civil war
and reconstruction amendments, primarily 14th,
o Within 14th amendment: equal protection, due process, and privileges and
immunities clause
th
o The 14 amendment, adopted after the civil war, declares: “no state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the
United Staes”
o There was great debate as to whether this was intended to apply the BOR to
the states
o Apart from arguing the framers intent you could argue that this clause should
apply the BOR to the states because the BOR are the basic “privileges and
immunities” possessed by all citizens
 However, this argument was closed in Slaughter House
o THE SLAUGHTER-HOUSE CASES
 There was a huge surplus of cattle in TX, the Louisiana legislature
gave a monopoly in the livestock landing and slaughterhouse business
for the City of New Orleans to Crescent City Livestock Landing and
Slaughter House Company
 Law required that the company allow any person to slaugher animials
in the house for a fixed fee
 Several butchers brought suit challenging the monopoly and arguing
that the state law impermissibly violated their right to practice their
trade
 Also argued it created involuntary servitude, deprived them of their
property without due process of law, denied them equal protection of
the laws and abridged their privileges or immunities as citizen
 SC narrowly construed all of these provisions and rejected their
challenge to the monopoly
 Court said the purpose of the 13th and 14th amendments were to protect
slaves
 The courts narrow interpretation of due process and equal protection
 have all been overruled, but their narrow interpretation of the
privileges and immunities clause not
 Court held that the privileges and immunities clause was not meant to
protect individuals from state government actions and was not meant
to be a basis for federal courts to invalidate state law
 “privileges and immunities…are left to the state governments for
security and protection, and not by this article placed under the
special care of the federal government
• Means P & I is removed as a basis for applying the BOR to the
states or for protecting any rights from state interference
The Revival of the Privileges or Immunities Clause
o SAENZ v. ROE: in 1999, the SC used for the 1st time in history the P & I clause of
the 14th amendment to invalidate a state law
o Involved a Cali law which limited welfare benefits for new residents in the
state to the level of the state they moved from for their year of residence
o Stevens said that prior decisions clearly established that the right to travel is
a fundamental right
 An aspect of this is the right of new residents to be treated the same as
longer term residents of a state and that this aspect of the right to travel
is protected by the P & I clause of the 14th amendment
o The state argued that it was justified in order to restrict Cali being a magnet
for people moving to the state to collect higher welfare benefits
o The opinion rejected this argument: 1) there empirical evidence is not large
enough to justify a burden on those who had no motive, 2) cali has
represented that the legislation was not enacted for any such reason, and 3)
even if it were such a purpose would be unequivocally impermissible
o It is uncertain what this case will mean in the future

Initial Incorporation Cases

o Due to Slaugher House the application of the BOR to the states could not go through
the P & I clause, in early 20th century the SC suggested an alternative approach:
finding that at least some of the BOR provisions are part of the liberty protected from
state interference by the due process clause of the 14th amendment
o Once the court found that the due process clause of the 14th amendment protected
fundamental rights from state infringement, there was a major debate over which
liberties are safeguarded
o On one side were the total incorporationists who believed all the BOR should
be deemed to be included (Black and Douglas were the foremost advocates
for this)
o Other side were selective incorporationists believing only some of the BOR
were sufficiently fundamental to apply to state and local governments
o This debate was centered on 3 issues:
 1) over history and whether the framers of the 14th amendment
intended for it to apply the BOR to the states, both sides claimed that
 history supported their view
• Black believed that P & I clause was meant to incorporate
• The other sideargued that framers did not intend for the 14th
amendment to apply the BOR to the states
• The historical argument ultimately is unresolvable and can
never be decisively resolved because there is not a single
discernable intent on the issue of incorporation, plus it begs
the question of how much weight should be given to the
framer’s intent even if it could be ascertained
 2) incorporation debate was over federalism
• Apply the BOR to the states imposes a substantial set of
restrictions on state and local governments
• Opponents of total incorporation argued based on federalism:
the desirability of preserving state and local governing
autonomy by freeing them from the application of the BOR
• Defenders of total incorporation responded with that
federalism is an insufficient reason for tolerating violations of
fundamental liberties
 3) appropriate judicial role
• Defenders of total incorporation argued selective
incorporation gives judges far too much discretion in deciding
what rights are fundamental, and allowed judges to “roam at
will in the limitless area of their own beliefs as to
reasonableness…which the constitution entrusts to the
representatives of the people
• Advocates of selective incorporation denied that this allowed
subjective choices by justices

Current Law as to What’s Incorporated

o The SC has never endorsed the total incorporationist approach, but the SC has found
almost all of the provisions to be incorporated
o Over time the court has articulated varying tests for whether a provision should be
incorporated, in DUNCAN v. LOUISIANA they summarized and said, “the question
has been asked whether a rgith is among those ‘fundamental principles of liberty and
justice which lie at the base of all our civil and political institutions’ whether it is
‘basic in out system of jurisprudence’ and whether it is a ‘fundamental right,
essential to a fair trial’”
o Provisions from the BOR which have been incorporated, p. 503
o Since Barren v. Baltimore was never overruled when challenging the legality of a
search the def is raising the 4th amendment as applied to the states through the due
process clause of the 14th
o The BOR that have been incorporated apply to the states exactly as they apply to the
federal government (“jot for jot”) except for the requirement of a 12 person jury and a
unanimous verdict
The Concept of State Action = The Application of Civil Rights and Civil Liberties to
Private Conduct
o The constitution’s protections of individual liberties and its requirements for equal
protection apply only to the government
o Private conduct (entities or actors) does not have to comply with the constitution, this
is often referred to as the state action doctrine
o THE CIVIL RIGHTS CASES: generally credited with mandating the requirement for
state action
o Civil Rights Act of 1875 provided that all persons were “entitled to the full
and equal enjoyment of the accommodations, advantages, facilities, and
privileges of inns, public conveyances, on land or water, theaters, and other
places of public amusement” specifically prohibiting discrimination based on
race and color or basis of previous servitude
 Basically it prohibited private race discrimination and gave criminal
and civil penalities
o SC declared it unconstitutional, ruling that the 14th amendment applies just to
state and local government actions not to private conduct
o Private action was governed by state law and not by the US constitution,
“the wrongful act of an individual, unsupported by any such authority is
simply a private wrong or a crime of that individual; an invasion of the
rights of the injured party, it is true, whether they affect his person, his
property or his reputation; but if not sanctioned in some way by the state,
or done under state authority, his rights remain in full force, and may
presumably be vindicated by resort to the laws of the state for redress”
o Court concluded that congress under §5 of the 14th amendment could not
regulate private conduct but only could legislate against wrongs by state
governments
o The constitution offers no protection against private wrongs no matter how
discriminatory or how much they infringe fundamental rights
o The blanket rule that the constitution only applies to the government must be
qualified in a few respects
o 1) the 13th amendment is the only provision which directly regulates private
conduct, forbids people from being or owning slaves
o 2) there are exceptions to the state action requirement, situations where
private conduct hast o comply with the constitution
 Such as that private conduct msut comply with the constitution if it
involves a task that has been traditionally, exclusively done by the
government
 The constitution applies if the government affirmatively authorizes,
encourages, or facilitates unconstitutional conduct
 Statutes, federal and state can apply constitutional norms to private
conduct
o There are 2 major policy rationales for the state action doctrine:
o 1) preserves a zone of private autonomy, meaning private actors have the
freedom to ignore the constitution and the limits contained within it, but also
 sacrifices individual freedom because it allows the violation of rights
o 2) state action doctrine enhances federalism by preserving a zone of state
sovereignty
 Civil rights cases held that federal constitutional rights donot govern
individual behavior and congress lacks the authority to apply them to
private conduct

What Constitutes the Government Under State Action Doctrine?

o The threshold question is whether the def is the government, obviously if a law is
being challenged then there is no question that the constitution applies
o The constitution also applies to the conduct of government officers in all branches
and at all levels
o But sometimes there is a debate about whether a particular entity or individual is the
government
o Clearly legislative entities at all levels are the government and their enactments are
state action and rules and decisions of government agencies at all levels are state
action
o When there is a question the difference seems to be one of degree rather than kind
o If a person is employed by the government and acting as a government officer there is
no doubt that there is state action
o Court has made it clear that a government officer acting under color of law,
and is a state actor if he or she is acting in an official capacity even if the
conduct id not authorized by state law
 Ex: doctors and psychiatrists who provide medical care in prison are
government actors
 An issue arises when an individual acts in concert with government
officials
o Two exceptions to the state action doctrine: 1) “public functions exception” meaning
a private entity must comply with the constitution if it is performing a task that has
been traditionally, exclusively done by the government, 2) “entanglement exception”:
private conduct must comply with the constitution if the government has authorized,
encouraged or facilitated the unconstitutional conduct
o Cases in the state action doctrine do not neatly fit together, decisions seem
inconsistent and the court has made little effort to reconcile them
o Entanglement Exception: the constitution applies if the government affirmatively
authorizes, encourages, or facilitiates private conduct that violates the constitution,
either the government must cease its involvement with the private actor or the private
entity must comply with the constitution
o Key question is what degree of government involvement is sufficient to make
the constitution applicable, these cases are very inconsistent
o These cases have arisen in 4 areas: 1) judicial and law enforcement actions,
2) government licensing and regulation, 3) government subsidies and 4) voter
initiatives permitting discrimination
o SHELLEY v. KRAEMER: SC held that courts cannot enforce racially
restrictive covenants
  Issue was whether courts could enforce contracts whereby members
of a neighborhood agreed not to sell their property to blacks
 Court explained that court enforcement has the government, through
the judiciary, facilitating discrimination
 The “participation of the state consists in the enforcement of the
restrictions” the court concluded that the “action of state courts and
judicial officers in their official capacities is to be regarded as action
of the state within the meaning of the 14th amendment
 It is government employed judges enforcing the contract law of the
state which does not forbid racial discrimination, that implements
discrimination by enforcing a racially restrictive covenant
 There is little doubt that judges are government actors and that
judicial remedies are state action
 Shelley remains controversial because ultimately anything can be
made state action under it
 The court has never taken Shelley this far but it also has not
articulated any clear limiting principle
o REITMAN v. MULKEY: SC found unconstitutional a voter initiative that repealed
open housing laws and prevented the enactment of such future antidiscrimination
laws
o A ballot initiative adopted by the voters declared, “neither the state nor any
subdivision thereof shall deny, limit or abridge, directly or indirectly, the
right of any person who is willing or desires to sell, lease or rent any part or
all of his real property to decline to sell, lease or rent such property to such
person or persons as he, in his absolute discretion chooses
o The court concluded that the provision, “would encourage and significantly
involve the state in private racial discrimination contrary to the 14th
amendment”
o Because the initiative was intended to authorize discrimination in housing
and because it does authorize such discrimination, it was unconstitutional
o Overall it is possible to say that the court is most likely to find state action based on
entanglement if it can be shown that the government’s purpose was to undermine
protection of constitutional rights or if the government is facilitiating private
conduct that otherwise would not occur
o To find state action based on entanglement there must be some government action
that can be identified as affirmatively authorizing, encouraging or facilitating
constitutional violations

Levels of Scrutiny
o In constitutional litigation concerning individual’s rights and equal protection the
outcome often depends on the “level of scrutiny”
o The level of scrutiny is the test applied to determine if the law is constitutional
o The level of scrutiny is instructions for balancing, it informs courts as to how to
arrange the weights on the constitutional scale to evaluate particular laws
o CAROLENE PRODUCTS: Footnote
 o Articulated the idea that different constitutional claims would be subjected to
varying levels of review
o SC upheld a federal law prohibiting “filled milk” a substance made by
mixing vegetable oil with skim milk
o “There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a specific
prohibition of the constitution, such as those of the first 10 amendments…it is
unnecessary to consider now whether legislation which restricts those
political processes which can ordinarily be expected to bring about repeal of
undesirable legislation, is to subjected to more exacting judicial scrutiny
under the general prohibitions of the 14th amendment…nor need we
enquire…whether prejudice against discrete and insular minorities may be
special condition, which tends seriously to curtail the operation of those
political processes ordinarily to be relied upon to protect minorities, and
which may call for a correspondingly more searching judicial inquiry”
o Courts generally presume that laws are constitutional, but “more searching
judicial inquiry” is appropriate when it is a law that interferes with individual
rights or a law that restricts the ability of the political process to repeal
undesirable legislation, or a law that discriminates against a “discrete and
insular minority”
Levels of Scrutiny Defined
o Rational Basis Test: minimal level of review
o All laws under due process or equal protection must meet at least rational
basis
o A law will be upheld if it is rationally related to a legitimate government
purpose, meaning the government’s objective only need be a goal that is
legitimate for government to pursue
o The means chosen need be only a reasonable way to accomplish the objective
o Challenger of a law has the burden of proof, law will be upheld unless
challenger proves that the law does not serve any conceivable legitimate
purpose or it is not a reasonable way to attain the end
o Enormously deferential to the government
o Intermediate Scrutiny: middle tier
o A law will be upheld if it is substantially related to an important
government purpose, government’s objective must be more than just a
legitimate goal for government to pursue, the court must regard the purpose
as “important”
o Means chosen must be more than a reasonabl way of attaining the end, the
court must believe that the law is substantially related to achieving the goal
o Government has the burden
o An unresolved question is whether less restrictive alternative analysis ever
should be used
o But it is clear that at the very least the means must be narrowly tailored to
achieve the goal when intermediate scrutiny is applied
o Strict Scrutiny: most intensive type of judicial review
 o A law will be upheld if it is necessary to achieve a compelling government
purpose, the court must regard the government’s purpose as vital, as
“compelling”
o Also law must be shown to be “necessary” as a means to accomplishing the
end, which requires proof that the law is the least restrictive or least
discriminatory alternative
o If the law is NOT the least restrictive alternative then it is not “necessary” to
accomplish the end
o The court has said SS “means that such classifications are constitutional only
if they are narrowly tailored to further compelling government interests”
o Government has the burden of proof, a law will be struck down unless the
government can show that the law is necessary to accomplish a compelling
government purpose
o Generally laws are declared unconstitutional when it is applied
o SS is used when the court evaluates discrimination based on race or national
origin, generally for discrimination against aliens and for interference with
fundamental rights such as the right to vote, right to travel, right to privacy,
and interference with freedom of speech
o If rational basis is used the law is likely to be upheld if SS is used the law is likely to
be struck down

Procedural Due Process

o The 5th and 14th amendments respectively provide that neither the US nor state
governments shall deprive any person “of life, liberty, or property without due
process of law” it has been interpreted as 2 separate limits on government,
procedural due process and substantive due process
o Procedural Due Process refers to the procedures that the government must follow
before it deprives a person life, liberty or property
o Concern what kind of notice and what form of hearing the government must
provide when it takes a particular action
o Substantive Due Process asks whether the government has an adequate reason for
taking away a person’s life, liberty or property
o It looks to whether there is a sufficient justification for the government’s
actions and whether there is such a justification depends on the level of
scrutiny used
o Ex: SC has held that parents have a liberty interest in the custody of their
children, thus procedural due process requires that the government provide
notice and a hearing and that there be clear and convincing evidence of a
need to terminate custody before parental rights are permanently ended and
that terminating custody is necessary to achieve a compelling purpose, such
as the need to prevent abuse or neglect of the child
o You can distinguish between the 2 based on the remedy sought, if Pl is seeking to
have a government action declared unconstitutional as violating a constitutional right,
substantive due process is involved, but when seeking to have a government action
declared unconstitutional because of the lack of adequate safeguards, such as notice
 and a hearing, procedural due process is in issue
o There have been 2 major uses of substantive due process:
o Before 1937 it was used to safeguard economic liberties and protect freedom
of contract as a fundamental right, paradigm case of this era was LOCHNER
v. NEW YORK
 Court declared unconstitutional a law which imposed a limit on the
number of hours bakers could work
o ROE v. WADE is the most famous example of modern substantive due
process
o The due process clause has been found to incorporate provisions of the bill of
rights that are deemed fundamental and to protect these rights from state and
local interference
o DESHANEY v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL
SERVICES: SC held that the government generally has no duty to protect individuals
from privately inflicted harms
o Guardian of a 4 year old sued department of social services for its failure to
protect the child from beatings by his father that resulted in irreversible brain
damage
o Pl maintained that dept was informed of the abuse over a 26 month period
and failed to act
o SC held there was no constitutional violation because the child was not in the
custody of the government and because the abuse occurred in thehands of a
private party
o “Nothing in the language of the due process clause itself requires the state
to protect the life, liberty and property of its citizens against invasion by
private actors. The clause is phrased as a limitation on the state’s power to
at, not as a guarantee of certain minimal levels of safety and security”
o Court declared that as a general matter the state’s failure to protect an
individual against private violence simply does not constitute a violation of
due process
o SC did recognize 2 narrow situations where the government has a duty to
provide protection from privately inflicted harms:
 1) when the government has limited the ability of a person to protect
himself or herself, such as when there is incarceration or
institutionalization
 2) where a special relationship between the government and the
injured person, such as when the government took an affirmative step
to place the person in danger
o Reflects belief that the constitution is a charter of negative liberties – rights
that restrain the government – and not a creator of affirmative rights to
government services
o Dissent: Blackmun: accused majority of gross insensitivity and resorting to
“formalistic reasoning” in drawing an artificial distinction between action and
inaction and characterizing the departments conduct as inaction seems
arbitrary
Economic Substantive Due Process
o LOCHNER v. NEW YORK
o SC declared unconstitutional a NY law that set the maximum hours that
bakers could work, it provided that no employee shall “work in a biscuit,
bread or cake bakery or confectionery estblishment for more than 60 hours in
any one week or more than 10 hours in any one day”
o It was unconstitutional as violating the due process clause of the 14th
amendment because it interfered with the right to contract and did not serve a
valid police purpose
o Court articulated 3 principles that were followed until 1937
 1) freedom of contract is a basic right protected as liberty and
property rights under the due process clause of the 14th amendment
• The right to purchase or sell labor is part of the liberty
protected by this amendment
 2) the government could interfere with freedom of contract only to
serve a valid police purpose: that is to protect the public safety, public
health, or public morals
• Government can regulate freedom of contract pursuant to its
police powers and those powers relate to the safety, health,
morals and general welfare of the public
• Both property and liberty are held on such reasonable
conditions as may be imposed by the governing power of the
state in the exercise of those powers
 3) it was the judicial role to carefully scrutinize legislation interfering
with freedom of contract to make sure that it served a police purpose
• “Is this a fair, reasonable and appropriate exercise of the state,
or is it an unreasonable, unnecessary and arbitray interference
with the right of the individual to his personal liberty or to
enter into those contracts in relation to labor which may seem
to him appropriate or necessary for the support of himself and
his family
o The court saw the maximum number of hours as interfering with the freedom
to contract because it prevented bakery owners and bakers from contracting
as they wished and claimed it did not serve a police purpose
o The due process clause was used to ensure that laws served an adequate
purpose, the court scrutinized both the ends served by the legislation to
ensure that there really was a valid police purpose and the means of the law
sufficiently achieved its purpose
o MULLER v. OREGON: court upheld a maximum hours law for women
o After Lochner there had to be proof that a law was closely related to
advancing public health, public safety or public morals, so attorneys began
filing detailed briefs filled with social science data seeking to show the need
for the law, often termed “Brandeis briefs” because of what Louis Brandeis
filed in this case
 o These documents used social science data to demonstrate the need for a
particular law
o ADKINS v. CHILDREN’S HOSPITAL:
o The court declared many state minimum wage laws unconstitutional, this
case the court declared unconstitutional a law that set a minimum wage for
women
o It said wages was different than hours because it interfered with freedom of
contract but did not serve any valid police purpose
o Even before Roosevelt proposed his court packing plan there were indications that the
court was ready to allow more government economic regulations
o NEBBIA v. NEW YORK: in 1934 the SC upheld a NY law that set prices for milk
o Court seemed to question the basic premises of the Lochner era, by saying
that neither property rights nor contract rights are absolute; for
government cannot exist if the citizen may at will use his property to the
detriment of his fellows, or exercise his freedom of contract to work them
harm
o The court appeared to question the premises of Lochner era that the
government only could regulate to achieve a police purpose and that the
court needed to review laws aggressively to ensure that they truly served a
police purpose

The Idea of a Fundamental Right

o Some liberties are so important they are “fundamental rights” and generally the
government cannot infringe upon them unless strict scrutiny is met
o Freedom of speech and religion are fundamental rights
o Most of these rights are not mentioned in the constitution
o Raises important issue of how the court should decide whether a liberty is also a
fundamental right and for most of these rights the SC has indicated that SS should be
used, meaning that the government must justify its interference by proving that its
action is necessary to achieve a compelling government purpose
o Almost all of these rights have been protected by the court under the due process
clauses of the 5th and 14th amendment and or equal protection of 14th
o In some cases the court disagrees as to whether the right is protected under due
process or equal protection, ZABLOCKI v. REDHAIL: the right to marry is
fundamental and protected under the liberty of the due process clause but the
concurring opinion used equal protection
o If a right is safeguarded under due process the consitutional issue is whether the
government’s interference is justified by a sufficient purpose, but if protected under
equal protection the issue is whether the government’s discrimination as to who can
exercise the right is justified by a sufficient purpose
o Framework: 1) is there a fundamental right? 2) has the government infringed upon the
right (when does a burdening of the exercise of a fundamental right become an
infringement requiring SS)
o When evaluating whether there is a violation of a right the court considers
“the directness and substantiality of the interference” but little discussion as
 to what constitutes a direct and substantial interference with a right
o 3) if a right is fundamental, the government must present a compelling interest to
justify the infringement, but if not fundamental then a legitimate purpose will suffice
o the court has yet to articulate criteria for determining whether a purpose is
“compelling” the most that can be said is that the government has the burden
of persuading the court that a truly vital interest is served by the law in
question
o 4) under SS must also show that the law is NECESSARY to achieve the objective,
meaning the government is required to prove that it could not attain the goal through
any means less restrictive of the right
o In comparison, for RB the means only has to be a reasonable way to achieve
the goal and the government is not required to use the least restrictive
alternative
o No formula for whether a means is necessary or if a less restrictive means
can suffice, the government’s burden with a fundamental right is to prove
that no other alternative, less intrusive of the right, can work
o MEYER v. NEBRASKA: SC declared a state law prohibiting the teaching in school
any language except English unconstitutional
o First SC case recognizing family autonomy involved the right of parents to
control the upbringing of their children
o Defined “liberty” broadly as to due process protecting basic aspects of family
autonomy
o “Without doubt, liberty denotes not merely freedom from bodily restraint, but
also the right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, marry, establish a home and
bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of happiness by men”
o Since Meyer the court has expressly held certain aspects of family autonomy
to be fundamental, the right to marry, right to custody of one’s children, the
right to keep the family together and the right to control the upbringing of
one’s children, but none of these rights are absolute
o LOVING v. VIRGINIA: Virginia’s antimiscegenation statute prohibiting a white
person from marrying anyone but a white person was unconstitutional
o “the freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men. Marriage is
one of the basic civil rights of man fundamental to our very existence and
survival
o The court concluded that the law surely deprives all state’s citizens of liberty
without due process of law
o ZABLOCKI v. REDHAIL: a Wisconsin law prohibited an individual from obtaining
a marriage license without court approval if the person had a minor child not in his or
her custody for whom there was a court order to pay support
o Court could grant permission to marry only if there was proof that all child
support payments were up to date
 o Court found that the law was not sufficiently related to the end of paying
support for minor children, thus it violated euqal protection
o Further, there were less restrictive means possible, such as wage garnishment,
civil contempt, and criminal prosecutions
o TROXEL v. GRANVILLE: father of 2 young daughters committed suicide, the girls
continued to regularly visit their paternal grandparents, then the mother largely ended
this visitation to only a few times a year
o Grandparents sued in Washington under a state law which protects
grandparents rights
o Washington SC declared it unconstitutional as violating the mother’s right to
control the upbringing of her children
o No majority opinion by the court
o “The liberty interest at issue in this case – the interest of parents in the care,
custody and control of their children – is perhaps the oldest of the
fundamental liberty interests recognized by this court”
o The statute was too broad, allowed “any person” to petition the court for
visitation rights at any time and the court may grant it when “visitation may
serve the best interest of the child” which gives the judge undue control
o PIERCE v. SOCIETY OF SISTERS:
o Two years after Meyer v. Nebraska, SC held unconstitutional a state law
requiring that children attend public schools
o Court said, “the fundamental theory of liberty upon which all governments in
this union repose excludes any general power of the state to standardize its
children by forcing them to accept instruction from public teachers only. The
child is not the mere creature of the state; those who nuture him and direct his
destiny have the right, coupled with the high duty, to recognize and prepar
him for his additional obligations.”
o MOORE v. CITY OF EAST CLEVELAND: The Right to Keep the Family Together
o The SC has recognized a fundamental right to keep the family together
including the extended family
o A city’s zoning ordinance limited the number of unrelated people who could
live together in 1 household and “unrelated” would keep a grandmother from
living with her 2 grandsons who were first cousins
o Powell writing for the majority concluded that “liberty” in the due process
clause includes protection of family rights
o The constitution protects family rights, not just for parents and children
o Child rearing decisions have “long been shared with grandparents or other
relative who occupy the same household”
o This holding has been limited in 2 major ways
 1) individuals must be related to one another to be considered a
family
 2) court’s refusal to find an infringement of the right to keep the
family together unless there is a direct and substantial interference
o Parents have a fundamental right to custody of their children, thus the government
can permanently terminate custody only if it meets the requirements of both
 procedural and substantive due process: parents must be given notice and a hearing
and the government must prove that terminating custody is necessary to achieve a
compelling goal
o STANLEY v. ILLINOIS: SC declared unconstitutional a state law that
automatically made children of an unmarried mother wards of the state at the
time of her death
 Joan and Peter Stanley had lived together for 18 years and had 3 kids
at the time of her death, but the kids were taken from her and placed
into the state’s guardianship without any showing he was an unfit
parent simply because they were not married
 “the right to conceive and raise one’s children have been deemed
essential basic civil rights of man and rights far more precious than
property rights”
 Both due process and equal protection were violated by state
termination of father’s rights without any showing that he was unfit
 “When an unwed father demonstrates a full commitment to the
responsibilities of parenthood by coming forward to participate in the
rearing of his child, his interest in personal contact with his child
acquires substantial protection under the due process clause, but the
mere existence of a biological link does not merit equivalent
constitutional protection”
o MICHAEL H v. GERALD D: SC even further limited the rights of
nonmaried fathers
 Involved a married woman who conceived as a result of an affair, the
biological father was regularly involved in the child’s life and sought
a court order granting visitation
 Held that even an unmarried father who participated actively in the
child’s life is not entitled to due process if the mother was married to
someone else
 A state may create an irrebuttable presumption that a married
woman’s husband is the father of her child even though it negates
all of the biological father’s rights
 The biological father didn’t have a liberty interest because there was
NO TRADITION of protecting the father’s rights when the mother is
married to someone else
 Rehnquis wrote: SC should protect rights under the due process
clause only if there is a tradition, stated at the most specific level of
abstraction, for safeguarding the liberty
o GRISWOLD v. CONNECTICUT: The Right to Purchase and Use Contraceptives
o SC declared unconstitutional a state law that prohibited the use and
distribution of contraceptives
o Involved criminal prosecution of Griswold, executive director of Planned
Parenthood League of Connecticut and a DR who openly ran a planned
parenthood clinic
o Right to privacy was a fundament right
 o But rejected argument that the right was protected under due process rather
he found it in the penumbra of the bill of rights, which has been criticized and
not followed by subsequent cases
o Important to note he did not focuse on a right to avoid procreation or make
reproductive choices, rather focused on the need to protect the privacy of the
bedroom from intrusion by the police and ability to control information about
contraceptive use
o Subsequent to Griswold the SC recognized a right to purchase and use
contraceptives on a right of individuals to make decisions concerning procreation
o EISENSTADT v. BAIRD: SC declared unconstitutional a Massachusetts law
that prohibited distributing contraceptives to unmarried people and only
allowed doctors to distribute them to married couples
 Court found Mass law denied equal protection because it
discriminated against nonmarried individuals
 “If the right to privacy means anything, it is the right of the
individual, married or single to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child”
 court also said that prohibiting distribution of contraceptives served
no legitimate government purpose
 Also important in recognizing a right for unmarried and married
people in protecting the right to distribute contraceptives and use
them

The Right to Abortion

o In 1973 in Roe v. Wade, the SC held that the constitution protects a right for a woman
to choose to terminate her pregnancy prior to viability – the time at which the fetus
can survive on its own outside the womb
o Specifically the court ruled that the government may not prohibit abortions
prior to viability and that government regulation of abortions had to meet
strict scrutiny
o In Planned Parenthood v. Casey the SC reaffirmed Roe v. Wade and held
that the government may not ban abortions prior to viability, but the
government may regulate abortions before viability so long as it does not
place an “undue burden” on access to abortions
o Spousal consent and spousal notification requirements for married women have been
declared unconstitutional
o ROE v. WADE: involved a challenge to a Texas law that prohibited all abortion
except those necessary to save the life of the mother
o Did not find privacy in the penumbra of the BOR like in Griswold but rather
part of the liberty protected under the due process clause
o Why prohibiting abortion infringes on a woman’s right to privacy: maternity
or additional offspring, may force upon the woman a distressful life and
future, psychological harm may be imminent, mental and physical health may
be taxed by child care, forcing a woman to continue a pregnancy against her
 will obviously imposes enormous physical and psychological burdens
o The right to abortion is not absolute and must be balanced against other
considerations, such as the state’s interest in protecting “prenatal life”
o The tem “person” in the constitution was never meant to include fetus
o The court divided pregnancy into 3 trimesters
 During the first the government could not prohibit abortions and
could regulate abortions only as it regulated other medical procedures
such as by requiring that they be performed by a licensed physician
 During the 2nd, government could not outlaw abortions by may
regulate the abortion procedure in ways that are reasonably related to
maternal health
 In the 3rd, the government may prohibit abortions except if necessary
to preserve the life or health of the mother
o The dissenting judges argued this was an issue that should be left to the
legislature and political process
o PLANNED PARENTHOOD v. CASEY: the US urged the court to use this case to
overrule Roe, but the court did not
o Reaffirmed that states can’t prohibit abortion prior to viability, but the
trimester rule was overruled and the use of SS for evaluating government
regulation of abortions
o Instead, the plurality said the government regulation of abortions prior to
viability should be allowed unless there is an “undue burden” on access to
abortion
o The law challenged here regulated abortions with a 24 hour waiting period,
required dr’s to inform women of the availability of information about the
fetus, required parental consent for unmarried minors abortions, requirements
for reporting and record keeping and required spousal notification
o Reaffirmed viability, the government may not prohibit abortion before
viability, but after viability they may be prohibited except where necessary to
protect the woman’s life or health
o Did overrule the trimester framework because it misconceives the nature of
the pregnant woman’s interest and in practice it undervalues the state’s
interest in potential life
o The test: for evaluating the constitutionality of a state regulaton of
abortion is whether it places an undue burden on access to abortion, which
is an appropriate means of reconciling the state’s interest with the
woman’s constitutionally protected liberty…a finding of an undue burden
is a shorthand for the conclusion that a state regulation has the purpose or
effect of placing a substantial obstancle in the path of a woman seeking the
abortion
o Upheld the 24 hour waiting period, requirement of detailed info about the
fetus, and reprting and recording requirements
o The spousal notification was unconstitutional

What is an Undue Burden on the Right to Abortion?

o STENBERG v. CARHART: state law unconstitutional which prohibited partial birth
abortion
o The undue burden test combines 3 distinct questions into one inquiry, is the right
infringed, is the infringement justified by a sufficient purpose, and are the means
sufficiently related to the end sought, and it is confusing to apply because it melds all
3 together
o Plus it has an internal tension, it cannot act with the purpose of creating
obstacles to abortion but it can act with the purpose of discouraging abortion
o Court implied an undue burden exists only if a court concludes that a
regulation will prevent women form receiving an abortion
o Important to know that after Casey the government can regulate abortions prior to
viability so long as there is not an undue burden on access to abortions

The Right to Refuse Medical Treatment

o CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH
o Nancy Cruzan suffered severe head injuries in a car accident and was in a
persistent vegetative state, her parents wanted to terminate food and
hydration to end her life, but the state intervened to prevent this
o Three parts to the court’s holding:
 1) competent adults have a constitutional right to refuse medical care,
“we assume that the constitution would grant a competent prson a
constitutionally protected right to refuse lifesaving hydration and
nutrition”
 2) a state may require clear and convicing evidence that a person
wanted treatment terminated before it is cut off, acknowledged the
state’s important interest in protecting life and in ensuring that a
person desired the end of treatment before it is suspended
• “The choice between life and death is a deeply personal
decision of obvious and overwhelming finality. We believe
Missouri may legitimately seek to safeguard the personal
element of this choice through the imposition of heightened
evidentiary requirements”
 3) a state may prevent family members from terminating treatment for
another, the right to end treatment belongs to each individual
o Cruzan did not articulate a level of scrutiny for evaluating government
regulation of personal decisions concerning refusal of medical treatment,
because the court did not label it as fundamental or imply SS
o Also the court did not resolve what is sufficient to constitute cear and
convincing proof of a person’s desire to terminate treatment, the court noted
that most states limit the use of “oral testimony entirely in determining the
wishes of parties in transactions which, while important, simply do not have
the consequences that a decision to terminate a person’s life does” implying a
written living will would be sufficient
o Does not address the situation where a competent person designates a
surrogate or guardian to make the decision
Physician Assisted Suicide
o In WASHINGTON v. GLUCKSBERG the SC rejected facial challenges to state laws
prohibiting aiding a suicide and the claim that there is a constitutional right to
physicia assisted suicide
o Rendered without a dissent but left open the possibility of legal protection for
such a right both at state level and in future SC rulings
o Rejected a claim that the Washington law prohibiting assisted suicide
violated a fundamental right protected under the due process clasue
o A right is protected as fundamental under due process only when supported
by history or tradition
o And for over 700 years the anglo American common law tradition has
punished or otherwise disapproved of both suicide and attempting suicide
o Since assistance in committing suicide was not a fundamental liberty interest
the law was to be upheld so long as it met rational basis test
o Court found that it reasonably served many legitimate interests, such as the
state has important interests in the preservation of life, in protecting the
integrity and ethics of the medical profession, in protecting vulnerable
groups and in stopping the path to voluntary and even involuntary
euthanasia
o Seem to emphatically reject a constitutional right to physician assisted
suicide, but not 1 justice voted to declare unconstitutional either state law, so
states can enact statutes protecting such a right
o It allowed the issue of the right to die largely to the political process

Equal Protection
o The Constitution as originally drafted and ratified had no provisions ensuring equal
protection of the laws, but after the Civil War widespread discrimination against
former slaves led to the passage of the 14th amendment, which reads: “No state
shall…deny to any person within its jurisdiction the equal protection of the laws”
o The court did not rely on this provision until around the 1950’s
o Brown v. Board of Education ushered in the modern era of EP
o It is now well settled that equal protection analysis under the 5th and the 14th
amendments are exactly the same, but technically EP applies to the federal
government through judicial interpretation of the due process clause of the 5th
amendment and to state and local governments through the 14th amendment
o The Basic Question: EP cases all pose the same basic question: Is the government’s
classification justified by a sufficient purpose?
o A sufficient justification depends entirely on the type of discrimination, such
as the SC is extremely suspicious of racial discrimination and thus the
government may use racial classifications only if it proves that they are
necessary to achieve a compelling government purpose, SS, where as age
only has to meet RB
o All EP issues can be broken down into 3 questions: 1) what is the classification, 2)
what level of scrutiny should be applied, and 3) does the particular government action
meet the level of scrutiny
o 1) what is the government’s classification, how is the government drawing a
distinction among people?
 There are 2 basic ways of establishing classification, 1) where the
classification exists on the face of the law (where the law in its very
terms draws a distinction among people based on a particular
characteristic), 2) laws that are facially neutral but there is a
discriminatory impact to the law or discriminatory effects from its
adminstration
• Disparate impact (discriminatory impact) is insufficient to
prove a racial or gender classification
• If a law is facially neutral and you want to demonstrate a race
or gender classification you must prove that there is a
discriminatory purpose behind the law
o 2) what is the appropriate level of scrutiny, identify the level of scrutiny to be
applied, there are different levels of scrutiny depending on the type of
discrimination
 Discrimination based on race or national origin is subjected to SS,
discrimination against aliens is too
• Under SS a law is upheld if it is proved necessary to achieve
a compelling government purpose
o Government must have a truly significant reason for
discriminating and it must show that it cannot achieve
its objective through a less discriminatory alternative
o Government has the burden of proof and the law will
be upheld only if the government persuades the court
that it is necessary to achieve a compelling purpose
o SS is virtually always fatal to the challenged law
 Discrimination based on gender and nonmarital children is
intermediate scrutiny
• Under IS a law is upheld if it is substantially related to an
important government purpose
• The court does not need to find the government’s purpose
“compelling” but the objective must be “important”
• Meaning that the means used need not be necessary but must
have a “substantial relationship” to the end being sough
• Government has the burden of proof
 The final test is Rational Basis review
• The minimal level of scrutiny that all laws challenged under
EP must meet
• A law will be upheld if it is rationally related to a legitimate
government purpose
• The government’s object only needs to be something that they
may legitimately do and the means chose only have to be a
rational way to accomplish the way
 • Challenger has the burden of proof, enormously deferential to
the government and only rarely have laws failed this
(Cleburne)
 Three factors that help determine the level of scrutiny: 1) immutable
characteristics (idea is that it is unfair to penalize a person for
characteristics they did not choose and cannot change), 2) the ability
of the group to protect itself through the political process, and 3)
history of discrimination against the group
o 3) does the government action meet the level of scrutiny? The court evaluates
both the laws ends and its means
 Ends
• For SS the end must be deemed compeling for the law to be
upheld
• For IS the end has to be regarded as important
• For RB there just has to be a legitimate purpose
 When evaluating the relationship of the mans of the particular law to
the end, the SC often focuses on the degree to which a law is
underinclusive or overinclusive
• Underinclusive: does not apply to individuals who are similar
to those to whom the law applies
• Overinclusive: applies to those who need not be included in
order for the government to achieve its purpose
• Virtually all laws are overinclusive or underinclusive
o Rational Basis Test: the minimal level of scrutiny that all government actions
challenged under EP
o Basic requirement is that a law meets rational basis review if it is rationally
related to a legitimate government purpose
o In an EP context this is satisfied so long as the classification is “rationally
related to a legitimate state interest”
o The law will be upheld unless the challenger can prove that the government
has no legitimate purpose or that the means used are not a reasonable way
to accomplish the goal
o The SC is extremely deferential to the government when applying the rational
basis test, it is
o It can be argued that the court has gone too far in its deference under the
rational basis test
o Requirement for a “Legitimate Purpose”: when assessing if there is a legitimate
purpose for a law there are 2 interrelated questions, 1) what constitutes a legitimate
purpose? How is it to be decided whether there is such a purpose present; must it be
the actual purpose behind the law or is it enough that such a purpose is conceivable?
o At the very least the government has a legitimate purpose if it advances a
traditional “police” purpose: protecting safety, public health or public morals
o Virtually any goal that is not forbidden by the constitution will be deemed
sufficient to meet the rational basis test
o Must it be the Actual Purpose or Is a Conceivable Purpose Enough?
 o The court’s enormous judicial deference under RB is in part due to its
willingness to accept any conceivable legitimate purpose as sufficient, even if
it is not the government’s actual purpose
 Meaning a law will be upheld so long as the government’s lawyer can
identify some conceivable legitimate purpose, regardless of whether
that was the government’s actual motivation
 Under RB review the actual purpose behind a law is irrelevant and
the law must be upheld if any set of facts reasonably may be
conceived to justify its discrimination
 Government lawyers can create some legitimate conceivable purpose
for virtually every law
o Under RB the court must decide “whether the classifications drawn in a statute are
reasonable in light of its purpose
o Under RB the law will be upheld unless the government’s action is “clearly
wrong, a display of arbitrary power, not an exercise of judgment”
o CITY OF CLEBURNE, TEXAS v. CLEBURNE LIVING CENTER, INC
o SC declared unconstitutional a city ordinance that required a special permit
for the operation of a group home for the mentally disabled
o Held RB was appropriate standard for evaluating government actions
discriminating against the mentally disabled, but still declared it
unconstitutional
o Court concluded that all of the reasons the city offered were not legitimate
purposes or that the ordinance was not a reasonable way of accomplishing the
goals
o Should be remembered that this is a rare and exception to the usual rule of
RB allowing almost any law to stand

Classifications Based on Race and National Origin

o DRED SCOTT v. SANDFORD: major controversy surrounded the admission of
Missouri as a state and whether it and other areas covered by the Louisiana Purchase
would be free or slave states
o Missouri compromise: admitted Missouri as a slave state but prohibited
slavery in the territories north of the latitude of 36, 30’ territories below this
line could decide whether to allow slavery and could make that choice when
admitted as states
o SC declared the Missouri Compromise unconstitutional and broadly held that
slaves were property, not citizens
o Dred Scott, a slave owned in Missouri was taken into Illinois, a free state,
after his owner died the estate was administered by John Sanford, a resident
of NY
o Scott sued Sanford in federal court basing jurisdiction on diversity claiming
residence in IL made him a free person
o The SC held that slaves were not citizens, thus could not invoke diversity
jurisdiction and could not sue as citizens in federal court
o SC went further by saying the Missouri Compromise was unconstitutional
 because congress could not grant citizenship to slaves or their descendants
because it is a taking of property from slave owners without due process of
just compensation
Strict Scrutiny for Discrimination Based on Race and National Origin
o It is clearly established that racial classifications will be allowed only if the
government can meet the heavy burden of demonstrating that the discrimination is
necessary to achieve a compelling government purpose
o Meaning government must show an extremely important reason for its action
and it must demonstrate that the goal cannot be achieved through any less
discriminatory alternative
o Expressly declared that all racial classifications, whether disadvantaging or
helping minorities, must meet SS
o Justifications for SS: primary purpose of 14th amendment was to protect African
Americans, prejudice and history of discrimination make it less likely that racial and
national origin minorities can protect themselves through the political process, race is
an immutable trait and unfair to discriminate against people for a characteristic that is
acquired at birth and cannot be changed
o 2 ways of demonstrating the existence of a race or national origin classification: 1)
where the classification exists on the face of the law (the text of the law draws a
distinction among people based on race or national origin), 2) if the law is facially
neutral but there is discriminatory administration or impact, but requires proof of
discriminatory purpose
o 3 major types of facial race and national origin classifications:
 1) Race-Specific Classifications that Disadvantage Racial Minorities:
laws which expressly impose a burden or disadvantage on people
because of race or national origin
• Only 1 situation where the court expressly upheld racial
classifications burdening minorities: rulings affirming the
constitutionality of the evacuation of Japanese Americans
during WWII
• KOREMATSU v. UNITED STATES: SC went even further
and upheld the constitutionality of the evacuation of Japanese
Americans, because they were a serious risk to national
security and there was no way to screen disloyal citizen
• Court said it was upholding the order because it was wartime
and “hardships are part of war”
 2) Racial Classifications Burdening Both Whites and Minorities:
• LOVING v. VIRGINIA: SC declared unconstitutional a
state’s miscegenation statute which made it a crime for a white
person to marry outside the Caucasian race
• “The statutes proscribe generally accepted conduct if engaged
in by members of different races…There can be no doubt that
restricting the freedom to marry solely because of racial
classifications violates the central meaning of the Equal
Protection Clause”
  3) Laws Requiring Separation of the Races:
• PLESSY v. FERGUSON: upheld laws that mandated that
blacks and whites use “separate but equal facilities”
• Louisiana law required railroad companies to provide separate
but equal accommodations for whites and blacks
• Plessy was 7/8’s caucasion and refused to leave a car assigned
for whites
• “In view of the constitution, in the eye of the law, there is in
this country no superior, dominant, ruling class of citizens.
There is no caste here. Our constitution is color blind, and
neither knows nor tolerates classes among citizens. In respect
to civil rights all citizens are equal before the law…p. 703”
• Thus “separate but equal” became the law of the lane even
though separate was anything but equal
o BROWN v. BOARD OF EDUCATION: explained that the constitutionality of
segregation in educaton could not be resolved based on the framers’ intent
o Said must look at the effect of segregation itself on public education
o Does the segregation of children in public schools solely on the basis of race,
even though the physical facilities and other ‘tangible’ factors may be equal,
deprive the children of the minority group educational opportunities?
o State mandated segregation inherently stamps black children as inferior and
impairs their educational opportunities
o To separate them from others of similar age and qualifications solely
because of their race generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way unlikely to ever be
undone”
o Separate but equal has no place in public education, separate educational
facilities are inherently unequal
o PALMORE V. SIDOTI: any government action that uses race as a basis for a burden
or disadvantage is not allowed
o SC deemed unconstitutional a state court’s denying a mother custody of a
child because she had married a person of a different race
o State court concluded
o JOHNSON v. CALIFORNIA: clearly established that laws requiring separation of the
races are racial classifications that will be allowed only if SS is met
o SC held that strict scrutiny must be used in evaluating the routine racial
segregation of prisoners
o Race is factored into a decisions of housing inmates and prison officials
concede that there is virtually zero percent change that inmates of different
races will be housed together
o Argued this is necessary to prevent violence
o BUT all racial classifications must meet SS (only upheld if government can
prove its action is necessary to achieve a compelling purpose
o Usually apply RB for prisoner claims
o “Because the CDC’s policy is an express racial classification, it is
 ‘immediatley suspect.’ We therefore hold that the court of appeals erred
when it failed to apply SS to the CDC’s policy

Facially Neutral Laws With a Discriminatory Impact or With Discriminatory

Administration
The Requirement for Proof of a Discriminatory Purpose
o Some laws that are facially race neutral are administered in a manner that
discriminates against minorities or have a disproportionate impact against them
o SC has helth there must be proof of a discriminatory purpose in order for
such laws to be treated as racial or national origin classifications
o WASHINGTON v. DAVIS: applicant for DC police were required to take a
test and stats showed that blacks failed the exam more often than whites
 SC held that proof of a discriminatory impact is insufficient alone to
show the existence of a racial classification
 The court never held that “a law or other official act, without regard
to whether it reflects a racially discriminatory purpose is
unconstitutional solely because it has a racially disproportionate
impact”
 Discriminatory impact “standing alone…does not trigger the rule that
racial classifications are to be subjected to the strictest scrutiny and
are justifiable only by the weightiest of considerations
 Laws that are facially neutral as to race and national origin will only
receive more than rational basis review if there is proof of a
discriminatory purpose
• Justified this because EP clause “is the prevention of official
conduct discriminating on the basis of race”
• Enormous burden to overcome
• Also applies to gender

Racial Classifications Benefiting Minorities (Affirmative Action

What Level of Scrutiny for Racial Classifications Benefiting Minorities?? SS
o SS is used to evaluate all government affirmative action plans
o REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAHKE: 16 slots out of
100 at UC Davis Medical school set aside for minority students
o Four justices said that IS was the appropriate tests for racial calssifiations
benefiting minorities, four justices concluded that the affirmative action
program violated Title VI of the 1964 Civil Rights Act which prohibited
discrimination by institutions receiving federal funds
o Powell, by himself, said that SS should be used and that race and ethnic
distinctions of any sort are inherently suspect and call for the most exating
judicial examination and concluded that the set-aside was unconstitutional
but was permissible to be used as 1 factor in admissions decisions to enhance
diversity
o GRUTTER v. BOLLINGER: “all racial classifications imposed by government must
be analyzed by a reviewing court under SS, “ “we apply SS to all racial classifications
 to smoke out illegitimate uses of race by assuring that government is pursuing a goal
important enough to warrant use of a highly suspect tool”
o On 3 occasions the SC has indicated that the government may use race as 1 factor
among several in decision-making to help minorities and to enhance diversity
o In BAKKE said: “in such an admissions program, race or ethnic background
may be deemed a ‘plus’ in a particular applicant’s file, yet it does not insulate
the individual from comparison with all other candidates for the available
seats…an admissions program operated in this way is flexible enough to
consider all pertinent elements of diversity in light of the particular
qualifications of each applicant and to place them on the same footing for
consideration although not necessarily according them the same weight”
o GRUTTER: upheld the University of Michigan Law School’s affirmative
action program
 Court ruled that colleges and universities have a compelling interest
in creating a diverse student body and that they may use race as 1
factor, among many, to benefit minorities and enhance diversity
 Diversity is a compelling interest in education and universities may
use race as a factor to ensure diversity but quotas or numerical
quantification of benefits is impermissible
o UNITED STATES v. VIRGINIA (VMI): SC declared unconstitutional the exclusion
of women by the Virginia Military Institute
o Found the creation of the Virginia Women’s Institute for Leadership at Mary
Baldwin College insufficient to excuse VMI’s gender discrimination
o Women were still denied an opportunity only available to men
o IS was applied, “parties who seek to defend gender based government action
must demonstrate an exceedingly persuasive justification for that action…the
burden of justification is demanding and it rests entirely on the state” and the
justification “must not rely on overbroad generalizations about the different
talents, capacities or preferences of males and females”
o Their exclusion of women was found to be unconstitutional because it was
based entirely on gender stereotypes and that successful gender integration of
the federal military academies belied any claims of a need to exclude women
from VMI
o There are 2 ways of proving a gender classification and are identical to demonstrating
racial classifications, 1) gender discrimination can exist on the face of the law,
meaning the law in its very terms draws a distinction among people based on gender
(i.e. Virginia policy excluding women from attending Virginia Military Institute or
Oklahoma law allowing women to buy low alcohol beet at age 18 but men not until
21), 2) if a law is facially gender neutral, proving a gender classification requires
demonstrating that there is both a discriminatory impact to the law and discriminatory
impact to the law and a discriminatory purpose behind it
o The majority of SC cases concerning gender discrimination have involved laws that
benefit women and disadvantage men, 3 principles have emerged:
o 1) gender classifications benefiting women based on role stereotypes
generally will not be allowed
 o 2) gender classifications benefiting women designed to remedy past
discrimination and differences in opportunity generally are permitted
o 3) gender classification benefiting women can be based on biological
differences between men and women
o NGUYEN v. IMMIGRATION AND NATURALIZATION SERVICE: SC allowed
gender classifications benefiting women because of biological differences between
men and women
o Allowed a difference in INS rules favoring mothers over fathers because of
the greater certainty as to the identity of the mother as compared to the father
and the greater opportunity that mothers have in establishing a relationship
with their children
o Case involved how children can become citizens when born outside the US to
unmarried parents and one of their parents is a US citizen and 1 is not and the
statute required different and greater requirements for the child’s acquisition
of citizenship if the citizen parent is the father opposed to the mother
o Said congress’ decision to impose requirements on unmarried mothers is
based on the significant difference between their respective relationships to
the potential citizen at the time of birth
 1) the difference in the rule serves the governments interest in being
sure that there is a biological relationship between the parent and the
child and there is no doubt as the relationship between a mother and
child
 2) another governmental interest furthered in a substantial manner by
the law “is the determination to ensure that the child and the citizen
parent have some demonstrated opportunity or potential to develop
not just a relationship that is recognized as a formal matter by the law
but one that consists of the real everyday ties that provide a
connection between child and citizen parent and the United States
o Significant because it allows a gender classification benefiting women
based on biological differences between men and women
o The disagreement arises as to whether these biological differences are real
or social constructs and whether they should matter
o ROMER v. EVANS: SC found that Colorado amendment 2, which repealed all state
and local laws that prohibited discrimination against gays, lesbians, and bisexuals and
prevented future laws to protect these individuals, impermissibly discriminated based
on sexual orientation
o “Homosexuals, by state decree, are put in a solitary class with respect to
transactions and relations in both the private and the governmental sphere.
The amendment withdraws from homosexuals, but no others, specific legal
protection from the injuries caused by discrimination, and it forbids
reinstatement of these laws and policies”
o This fails even rational basis review
o “the amendment ahs the peculiar property of imposing a broad and
undifferentiated disability on a single named group, an exceptional and…
invalid form of legislation”
 o There was no legitimate purpose for denying gays, lesbians, and bisexuals the
same use of the political process available to everyone else and that the only
apparent purpose behind the law was “animosity toward the class of persons
affected” and this fails even rational basis
o First time the court has invalidated discrimination based on sexual orientation
o Establishes that animus against gays and lesbians, even when presented as a
purported “moral” basis for a law is not sufficient to meet the rational basis
test
o There is no legitimate purpose in singling out a particular group and
precluding it from using the political process
o “We must conclude that amendment 2 classifies homosexuals not to further a
proper legislative end but to make them unequal to everyone else. This
Colorado cannot do.”
o LAWRENCE v. TEXAS: SC held that a state cannot prohibit private, consensual
homosexual activity, overruling Bowers v. Hardwick
o Bowers had held that the right to privacy does not protect a right to engage in
private consensual homosexual ativity
o Held that the right to privacy protects the right of consenting adults to engage
in same sex sexual activity in their bedrooms
o Case arose when police in texas received an anonymous tip of a disturbance
in an apartment, went to investigate, entered the apartment and found 2 men
having sexual relations
o They were convicted and fined
o Majority focused on privacy and due process not EP, and does not state the
level of scrutiny and so it is unclear even under the right to privacy whether
rationale basis or heightened scrutiny is to be applied
o Lawrence is important because:
 1) means that laws in 13 states prohibiting private consensual
homosexual activity are unconstitutional, they are often the basis for
discrimination against gays and lesbians
 2) a powerful affirmation of a right to privacy under the constitution
 3) more than any other case, recognizes that sexual ativity is a
fundamental aspect of personhood and is entitled to constitutional
protection
 4) the most important decision to date recognizing the rights of gays
and lesbians to equally dignity and equal treatment under the
constitution
o It is important to note the court never said fundamental right or SS but court
did rely on privacy in which SS is used, thus leaving it open until clarification
is added
Parents Involved