Con Law Outline

CON LAW OUTLINE
I. Role of the Judiciary
A. Federal Judicial Review:
Why a Constitution?
Functions:
Separation of Powers (SOP)
Federalism (C defines relationship between national & state power)
Individual Liberties
Unique Aspects:
Marbury v. Madison: US Sup Ct-1803
Facts:
P appointed to be Justice of the Peace for life by Adams as his term ended.
Jefferson takes office and D refuses to deliver the commission to P
Case began in the US Sup Ct.
Holding:
Sup Ct lacked jurisdiction to rule on this case
Congress acted unconstitutionally by giving the Sup Ct jurisdiction under the Judiciary Act of 1789.
Cardinal Rule: Federal Judges will NOT interpret the C if they don’t have to.
Why did Judge Marshall interpret the C in this case?
He wanted to establish Judicial Review.
“Marshall Highway”: Possible Outs:
1. He could have said that the commission doesn’t vest in Marbury unless it is delivered. But he didn’t say this. He said the commission vested when the documents were signed. He didn’t say that the delivery was necessary in order for the commission to have bested in him because he doesn’t want to back down. He wants to get to the constitutional question.
2. He could have read the Act as giving the Sup Ct Appellate Jurisdiction
3. He could have said it was a political question, NOT a legal duty. But again, he wanted it to continue.
The Executive Realm is split in half. Half of it is political/discretionary that is not subject to judicial review. The other half is a legal duty that is subject to judicial review.
4. He could have interpreted the exceptions clause of Art II § 2 to allow mandamus in original jurisdiction., but he didn’t.
Art III § 2 spells out the Federal Court’s subject matter jurisdiction. The claim must be within this section to be in Federal Jurisidction.
Art II §2  Sup Ct/Ct of Appeals/ Dis Cts  Sup Ct
The Sup Ct hears cases regarding ambassadors, where the state is a party, or in any of the other listed situations.
Mandamus is not a case regarding ambassadors or the state being a party, so technically they didn’t have to proceed.
Marshall  Mandamus is not mentioned in A,B, or C so it is unconstitutional to fit it in A.
Congress may not expand the federal court’s jurisdiction
Congress may reduce the federal court’s jurisdiction, which would enhance State court power.
This case establishes the Supremacy of the Constitution. (All laws of Congress are less than the Constitution)
US v. Nixon: US Sup Ct 1974:
Facts:
Nixon conspired with high officials on tape
Special prosecutor ordered Nixon to turn over the tapes as evidence
Nixon claimed Executive Privilege
Issue: When may the President exert Executive Privilege?
In cases involving national security, etc.
Issue: Who decides the scope of the Executive Privilege?
The Court says the Court does!
B. Who is the Ultimate Arbiter of the Constitution?
3 Models:
1. Each branch is “Co-equal”
2. Spheres of Expertise
Marbury v. Madison:
Jurisdiction under Art III
Art II  executive decides if it’s a political question
US v. Nixon:
President can claim
Judiciary decides on evidence
3. Judiciary (Sup Ct)
Normative Evaluations of the 3 Models:
Model 1: Each branch is Co equal
+ most efficient, supports SOP
- What if the branches disagree?
Model 2: Spheres of Expertise
+ Expertise in an area
- Who decides which branch gets which sphere?
Model 3: Judiciary (Sup Ct)
+ 1 unified voice interpreting the C as a whole
- no one to check them
+ no bias/influence from others
What to consider when Interpreting the C:
Text
Can society handle the interpretation?
Prior cases
Framer’s intent
Historical context (tradition)
Legislative history)
What are States doing?
Judge’s own views (Marbury v. Madison)
Modern Context (vs. 4,5,6
Originalist: interpretation should be confined to the clearly implicit norms stated in the written C
Nonoriginalist: Courts have substantial discretion in interpreting the C. Believe that the C evolves by interpretation as well as amendment to meet the needs/norms of an evolving society.
Continuum: Know where your judge is on the continuum
Originalist (1,4,5,6) -----------------------------------------  Nonoriginalist (1,2,3,4,7,8,9)

II. Division of Power between the Executive and Legislative Branches:
A. Presidential Power
Does the President have “Inherent Executive Power” (IEP)?  power just b/c he is the president
Domestic issues
Foreign issues
To what extent can Congress delegate its power to the Executive Branch?
Art II  President’s Power.
Youngstown Sheet & Tube Co v. Sawyer: US Sup Ct 1952
Facts:
Steel mill workers on strike during Korean War
President issues an Executive Order mandating the mills to open up (claimed national security)

IEP: Every Issue of Whether the President Acted Constitutionally
Justice
Inherent Pres. Power?
Conditions?
Who Checks?
Black
No
Power must come from either Congress or the Constitution
Court
Douglas
Yes
President cannot usurp other branch’s power
Court
Frankfurter
Yes
Until Congress stops the President
Congress
Jackson
Yes
President cannot violate the Constitution
Court

B. Non-Delegation Doctrine  Delegable Duties:
Non-Delegation Doctrine: The executive branch could NOT do any Legislation
(Until the Industrial Revolution  out of Necessity)
Administrative Agencies: Congress gave powers to the Executive Branch
(Legislative/Enforcement/adjudicative)
AA = experts in their fields
To What extent may Congress retain power over Delegable Duties?
Immigration and naturalization Service v. Chadha: US Sup CT 1983
Facts:
Congress delegated powers to the INS (and administrative agency) to determine if aliens may stay or be deported.
INS permitted the D to stay, but the House of Reps vetoed and demanded deportation
Issue: Can 1 house of Congress unilaterally veto an administrative agency’s decision?
Holding: The House of Reps’ veto violated the required procedure of Bicameralism + Presentment.
If Congress gives power away, it must completely give it away
Congress may take power back but it must follow the procedure to do so
Congress may set a time limit for the duration of power delegation.
NO VETO retention! (Legislative Vetoes are unconstitutional)
Procedure:

Bicameralism Presentment

To what extent may Congress delegate power to the Executive Branch?
Clinton v. City of NY: US Sup Ct 1998
Facts: Congress gave the President the power of a Line Item Veto, which means the president can cross out any part of a law he doesn’t like within 5 days of passing the law.
Issue: Is this an over delegation, violating SOP?
Holding:
Under Article I, only Congress may legislate
By changing the laws, the President is essentially legislating new laws.
Line Item Vetoes are UNCONSTITUTIONAL.
Disapproval Bill: if the President exercises a Line Item Veto, Congress may pass a bill to null his corrections, but the Pres. May veto this bill, requiring Congress to pass again by 2/3 vote this time.
(“Legislative Veto”  UNCONSTITUTIONAL)
The President cannot “tip the scale” by interfering with Lobbyist deals in Congress.
C. Inherent Executive Power in Foreign Affairs:
US v. Curtiss-Wirght Export Corp: US Sup Ct 1936
Facts: Congress authorized the President to stop sales of arms to nations involved in the Chaco Border dispute.
Issue: Can the President do this?
Holding: YES, if he acts in bounds with the Constitution.
Dames & Moore v. Reagan, Secretary of Treasury: US Sup Ct 1981
Treaty  requires Congressional approval
Executive agreement  president may negotiate a contract without congressional approval
Freeze Assets
Settlement Agreement through binding arbitration
Issue: Can the President force private litigants into binding arbitration?
Holding: Yes
It doesn’t interfere with the courts
Parties still get due process.
Can the President Deploy troops without Congressional Approval?
*Congress has the power to declare war
*President is Commander in Chief
War Powers Resolution: Congress’s attempt to keep the President in check
Look at framers of the Constitution’s intent
President may deploy troops ONLY when:
It’s to declare war
Statutory authorization
National emergency
The WPR is not very Practical  the President actually does have A LOT of war-making power.
Hamdi v. Rumsfeld: US Sup Ct 2004
Facts: Congress authorized the President to use all necessary and appropriate force against persons associated with attacks on the US>
Issue 1: Can a citizen be detained indefinitely?
In a 5 to 4 decision for Detention:
Yes: O’Connor/Rehnquist/Kennedy/Breyer
No: Ginsburg/Souter
No: Stevens/Scalia (should’ve charged w/ treason)
Yes: Thomas (leave it to the President to decide)
Issue 2: Does the Def have a right to Due Process?
The Court weighs Private Due process v. National Security in an 8 to 1 decision in favor of Due Process:
Yes: O’Connor/Rehnquist/Kennedy/Breyer
No: Ginsburg/Souter
Yes: Stevens/Scalia
No: Thomas
D. Congress’s Impeachment Power:
Can Congress Abuse its Impeachment Power?
Impeachment: Ultimate check on the president. But who checks this check?
Art II § 4: For Treason, Bribery, High Crimes, or Misdemeanors (felonies)
Art I § 3 (6): Senate = SOLE power to try ALL impeachments.
Votes:
Senate
Executive
People
Chief Justice of the Sup Ct (no power…silent, just symbolic…the Chief justice of the Sp Ct can’t really stop an abuse of impeachment power)
“High Crime/Misdemeanor” is NOT defined by the constitution. However, we do know that perjury is not a high crime/misdemeanor because Clinton was NOT convicted.
*Congress’s check on abusing Impeachment power = the People.

III. Federalism
A. Supremacy of Federal Law:
McCulluch v. Maryland: US Sup Ct 1819
Facts:
Congress set up a National Bank in Maryland.
Maryland taxed the bank.
Issue 1: Does Congress have the power to charter a National Bank?
Issue 2: Can a state tax a National Bank?
Analysis 1:
John Marshall said Yes. 2 parts-
a) People gave Congress power to establish the bank, NOT the States
b) Congress’s Power is broad.
Commerce Clause = Power
“Necessary and Proper” = Must be a legitimate end and reasonable means. If so, Congress’s actions are okay.
Judicial Limitations on Congress’s power:
Must be within the scope of the Constitution
No laws under a PRETEXT! (bad motives)
Analysis 2:
John Marshal said No. Federal > State
Slippery Slope  stop state taxation on federal bank before it gets out of hand
Tax on national Bank = a tax on EVERY state
Federal Government Distrusts the States
Key Things to take out of Mc v. Md:
1. establishes supremacy of federal law
2. federal government distrusts the states.
3. Congress’s power is Broad
4. Congress gets Commerce authority from the People, NOT the states.
MvM V. Mc v. Md:
M v M  established Court’s great power
Mc. v. Md  established Congress’s great power.
B. Commerce Clause and State Sovereignty:
Commerce Clause (Art I, §8): Congress has the power to regulate commerce “among the states”
10th Amendment: All powers not delegated to the Federal Government, nor prohibited to the States, is given to the States.
Commerce Clause does NOT say the States can NOT regulate commerce
To what extent may States regulate Commerce?
Gibbons v. Ogden: US Sup CT 1824 (Marshall)
Facts:
Ogden had exclusive right to have ferry on NY waters
Gibbons had a Federal License and had a ferry on NY waters.
Analysis:
“Commerce” includes Navigation!
“Among the States” means It concerns 2+ states (includes indirect effects)
Purely Intrastate Activity = State control (police powers)
Not delegated to the US, and is not prohibited to the States)
States may regulate interstate commerce, but Federal Law Trumps it.
Ollie’s BBQ + Heart of Atlanta:
Congress tried to regulate Civil Rights through a PRETEXT of Commerce
Private Businesses were not subject to 14th Amendment that outlawed government discrimination
So, Congress fit these private businesses into “Commerce”
US v. Lopez: US Sup Ct 1995:
Court used the same law as previous: “Commerce” = “Substantially Affects”
Court said:
No Economic Effect
No Connection to Interstate Commerce
D was charged with Possession, NOT selling
NY v. US: US Sup Ct 1992
Congress has the power under the Commerce Clause to regulate Radioactive waste disposal
Court:
Did not look at the definition of “Commerce” because Congress already has the power to regulate.
Law ruins “Accountability”: Whose fault is it? Federal officials or State officials?
Congress may encourage States but MAY NOT coerce them.
Era
Time
Congress’s Power
(Commerce Clause)
States’ Power
(10th Amendment)
Assumptions about States
Check
1
“Beginning”
Gibbons
McCulloch
-Expansive, Complete
-Controlling, Plenary
-Legitimate End
-Limited
-Intrastate
-Police Powers
-Not trustworthy
-not important
People (Political Process)
2
1887-1937
-“Direct” (Shreveport Rate Cases)
-Even Intrastate
-If Immoral (Lottery)
Production/Mining
(Hammer, Knight, Carter Coal)
-Trustworthy
-Important
Court
3
1937-1990
-“Substantial Effect”
-Commerce = Production
-Plenary
-10th Amendment is NOT needed

People (Political Process)

1990s

-Education (Lopez)
-Criminal Law
-Family Issues
States = labs
-Experimental
-NonCommandeering (NY v, US)

Prints v. US: US Sup CT 1997:
Brady Bill required local police to enforce background checks for gun sales until federal agents could
Congress had the power to regulate guns under the Commerce Clause  NOT the issue!
Rule: Federal government can NOT commandeer the states into federal service!
Congress may encourage or offer incentives, but may NOT mandate state action!
NO COMMANDERING!
Reno Hypo: A unanimous Decision!
Facts: Federal Statute tells states they can NOT sell DMV information
Issue: Does this violate the 10th Amendment?
Analysis: Federal Government said that he act prohibits something, it is NOT requiring States to do anything
Holding: Prohibiting = OK, Mandating = Not OK
Solid Waste: US Sup Ct 2001 (Commerce Clause Case)
Congress says it controls “navigable waters”
The body of water in question is just a poind
EPA defined “navigable waters” as including seasoned ponds
Issue: Does the Migratory Bird Rule fall under the Commerce Clause?
Analysis: Millions of people spend lots of money watching these birds
Holding: NO! Not Commerce
Marshall would say that as long as the end is just, then it’s okay

IV. Individual Liberties:
A. Early: 14th Amendment = Narrow
Barron v. Baltimore: USSC 1833
Facts: P claims local government may NOT deprive him of property without due process (5th amendment)
Issue: Does the 5th amendment apply to state/local governments?
Holding:
Constitution applies ONLY to the federal government
Trust your state governments
Court assumes State constitutions will protect such rights
The bill of rights does not apply to the states.
States are trusted with individual liberties.
Individual Liberty:
Beyond the political process
Can NOT be voted away by the majority
Court will decide what an “individual liberty” is
*Note: After the Civil War, courts saw that States could not be trusted with Individual Liberties of ex-slaves.
14th Amendment:
Privileges/Immunities (P/I)
Due Process
Equal Protection
Slaughterhouse Cases: USSC 1873
State granted a slaughterhouse monopoly to one slaughterhouse
The Pltfs are butches who challenge the grant.
Claims:
1. 13th Amendment (involuntary servitude)  Court: No! Not an issue of slavery.
2. P/I (include BOR)  Ct: No!
P/I of 14th Amendment = Same as Art IV
Under Supremacy Clause, States never had right to abridge these rights
Reads P/I Clause out because it adds nothing to Art IV.
3. Due Process (lost right to work = violates substantive Due Process)  Ct said No, only procedural DP
4. Equal Protection (not all butchers were treated equally)  Court said No, equal protection only applies to ex-slaves.
This was the first case to interpret the 14th Amendment:
P/I Clause means NOTHING
DP = Procedural ONLY (not substantive)
EP =Only for ex-slaves
BOR does not apply to the States
Trust with Individual Liberties:
Before 14th Amendment: (Barron)
States = YES
Feds = NO
*Ct soon began to interpret DP in substantive way
After 14th Amendment: (Slaughterhouse Cases)
States = NO
Feds = YES
B. Incorporation Doctrine:
Incorporate Debate = What is included in substantive due process?
Incorporation Doctrine
Put BOR into the 14th amendment’s due process clause
Does NOT include:
Right to bear arms (2nd amendment)
Right to not hosue soldiers (3rd amendment)Right to Grand Jury Indictment in Criminal Cases (5th amendment)
Jury trial in civil case (7th amendment)Prohibition of excessive fines (8th amendment)
Due Process:
Procedural Due Process
Substantive Due Process  The court decides what belongs here.
*Note: Why not revive the P/I Clause of the 14th amendment rather than cram it all under SDP?
Stare Decisis
C. State Action
State Action Requirement:
Private conduct does not have to comply with the Constitution
14th amendment applies ONLY to State Actors, NOT private people
Applies ONLY to Constitutional Violations! NOT State Laws!
Civil Rights Cases: US v. Stanley: USSC 1883
State government tried to regulate private conduct under the 14th amendment due process clause
There were no state actors, just private people.
Premise: Individual invasion of individual rights is not a subject of the 14th amendment.
Exceptions to State Action

Public Functions
Entanglement
YES: 1940-1960s
Marsh (Town)
Evans (Park)
Terry (Elections)
Shelley (Judge)
Brentwood (athletic association)
Reitman (Housing)
NO: 1970s +
Jackson (Exclusive)
Hudgens (Shopping Center
Moose Lodge (License

Exceptions to State Action Doctrine:
Public Functions: private person engages in something traditionally done by the government
Entanglement: if the Government has authorized or encouraged the private action.
Public Functions:
Marsh v. Alabama: USSC 1946
Company owned a town
Issue: Can D repress P from expressing religious beliefs within the town
Balance Test: As the town became more open to public use, rights of the people prevail over the rights of private owner
Town = Public Function
Evans v. Newtown: USSC 1966
Park given by private party as a gift to the city so long as only white people allowed to use it
Choice: either open the park up to everyone, or revert it back to the private party
Park = Public Function
Terry v. Adams: USSC 1953
Private Democratic Party held elections for whites only
Election = Public Function
Jackson v. Metropolitan Edison Co: USSC 1974
Privately-owned utility company cuts off electricity without notice
Violating Due Process under the 14th amendment?
Court says that the Public Function MUST traditionally be done Exclusively by the government
Utility is not a public function.
Public Functions are exclusive
Hudgens v. NLRB: USSC 1976
Private owner of Shopping Center forced strikers off of his premises
Violate Free Speech Under 1st Amendment
Shopping Center is not a public function
Entanglement:
Shelley v. Kramer: USSC 1948
Private K over selling a house
Community had restrictive covenant that permitted selling houses to whites only
D sold to a black person, so P is suing for breach
State Judge enforced the K State Actor!
Judge Enforcing private Discrimination = Entanglement
Moose Lodge No. 107 v. Irvis: USSC 1972
Lodge has State liquor license
Lodge discriminates against selling to blacks
Violate 14th amendment?
License Alone does not equal entanglement
Brentwood Academy v. TN SSAA: USSC 2001
TN Athletic Association = regulates school sports
TN SSAA imposed penalty on school
Board of directors of TN SSA = State Employees = State Decision Makers
State EE = Decision Maker = Entanglement
Reitman v. Mulkey: USSC 1967
State law prohibits discrimination in housing
Amended State Constitution to forbid State from interfering with Private Sale of housing
Housing Amendment to State Constitution to facilitate discrimination = Engtanglement (See Romer and SDP + EP p.24)
State Inaction sometimes = State Action
D. Substantive Due Process (SDP)
Economic Substantive Due Process:
Why is Lochner so important?  Freedom of K = “liberty” under SDP
From Lochner to Carolene Products

SDP

Incorporation Doctrine “Lochnerism” (State Law tries to regulate People)

BOR “Liberty”
Lochner v. NY: USSC 1897
State Law  limits number of hours per week a bakery employee may work.
Court  Law is irrational!!
Dissent: Baking = dangerous job
Era: Laissez faire
Freedom of K = “Liberty” of SDP
Analysis of Important Rights
State Police Powers:
Health
Safety
Morals
Welfare
Measuring Importance of Rights v. Standards of justification:
Rational?
Reasonable?
Necessary?
2 options:
1. Clear up the justification burden Analysis
2. Minimize the Importance of Freedom of K
Nebbia v. NY: USSC 1934
State Law – regulates price of milk
Ct  Milk = health issue Drops Freedom of K down a notch
West Coast Hotel v. Parrish: USSC 1937
State Law  minimum wage for women
Ct  Removes freedom of K from 14th amendment
(option 2)
US v. Carolene Products Co.: USSC 1938
Congress trying to regulate milk
Ct  If Law = Rational, Defer to Congress
Presumption  Validity of Economic Regulation
Some Rights are MORE IMPORTANT than others
Need Strict Scrutiny above Rationality (higher burden)
Equal Protection (Under 14th Amendment)
For laws that allegedly violate EP:
Court looks at Political Power of Minorities
Immutable Characteristics
History of Discrimination
Williamson v. Lee Optical of OK, Inc: USSC
State law  must have optometrist’s prescription to get new glasses
Ct  Law need only be Rational to aid in Health.
SDP Analysis: Fn 4 (Carolene Products): What Defines the line?

*As Court raised SOR, freedom of K dropped to merely needing rational law
*Law = much easier to be constitutional if NOT a Fundamental Right with ony Rational Burden
*In deciding if a Right is fundamental, look at SOR and Who is the Check

Fundamental Rights:
Parents controlling child’s upbringing (Meyer)
Right to Marry (Loving)
Right to Choose (Casey)
What Defines the Line between Fundamental/NOT?
“Natural Law”
History (Loving)
Tradition (Michael H)
Depends how narrow/broad the issue is:
Narrow  Not fundamental
E. Substantive Due Process + Privacy
Family Autonomy:
Parental Rights:
Meyer v. NE: USSC 1923
State Law  unlawful to teach young kids language other than English.
Teacher taught a 10 year old German
Ct  “Liberty” = right to knowledge
“Parents have a fundamental right to control their child’s upbringing”
Right to Marry:
Loving v. VA: USSC 1967
State Law: no interracial marriages
Court said that the law interferes with fundamental right to marry
(look to history of mankind)
Zablocki v. Redhail: USSC 1978
State Law: fathers without custody of child, must get courts permission for marriage (to make sure the fathers pay child support, rather than the State.)
Court said that marriage is NOT related to whether he’d pay child support.
Right to marry = fundamental right to privacy.
Child Custody:
Stanley v. IL: USSC 1972
State Law: child of unwed father = ward of the state if mother is dead.
Dad wanted custody (good dad)
Court said that the biological father has a right to custody if he is a fit parent.
Michael H v. Gerald D: USSC 1989
P is the father of child in marriage of Mom and D
State Law  Presumption of Legitimacy = ONLY mom and dad can rebut
Court  Ignored Biology in favor of marriage  Preserve the initial “Family”
Family United:
Moore v. City of Easy Cleveland, OH: USSC 1977
City Law  Only 1 “Family” per dwelling
Moore had extended family living with her - charged with crime
Ct  Law = Irrational, would not pass Strict Scrutiny either.
Troxel v. Granville: USSC 2000
Issue: Do Grandparents have a liberty interest in Grandchildren under the 14th Amendment?
Facts:
Parents are not married
The mother is a fit parent
State law says that anyone may visit if they petition the Court.
Holding: UNCONSTITUTIONAL LAW: infringes upon parents Control of Children
Reproductive Autonomy:
Right to Buy and Use Contraceptives:
Griswold v. Ct: USSC 1965
State law  illegal to aid married couples in using contraceptives
Court  9th Amendment: Protected rights of 5th and 14th amendments is NOT limited to BOR.
BOR includes Right of Privacy  includes Right to use Contraceptives.
Fundamental
Rights: or

Legitimate Controversial

Right to Abortion:
Roe v. Wade: USSC 1973
Trimester Framework:
1st: Woman’s Right to Privacy = Abortion
2nd: States’ Interest Increases and can regulate Abortion
3rd: “Viability” States’ Interest increase, can prohibit abortion

Abortion Answers:

1
Life = Conception 2
No Right to
Abortion
3
Form of Sexual
Discrimination

4
It’s a Matter of
Religion or Morals 5 Balance Interests

Implications
- Abort = Murder
- Incest/Rape?
- Unhealthy mom?
- Issue of States’ Rights
- Left to Pol. Proces.
- Law need only be rational
- Federalism

Woman
Fetus
Father
Husband
State
Dr.s
Case
Support
(Casey-1992)
“Potential Life” (Casey)

Private Morals (Viability)

Public Morals
Right to Choose
(Privacy)
At Viability: FR
Advs.
- “Bright Line”
- Child = Protected
- Gives Content to 10th Amend
- Federalism

Disadvs.
- No Bright Line for Exceptions

SDP Strict Scrutiny
FR

Right To Choose (Privacy) “Undue Burden” (Casey) - But at Viability:
FR
Rational Basis

Right to Die:
Right to Refuse Medical Attention:
Cruzan v. Director of Missouri Dept of Health: USSC 1990
Issue: State Law  Clear and Convincing Burden of Proof to show a vegetable would want to have the plug pulled.
Holding: Law = OK. State has a compelling interest to protect life.
Right to Physician-Assisted Suicide:
Washington v. Glucksberg: USSC 1992
Issue: Do Individuals have a right to Physician-Assisted Suicide?
Holding: NO!
Dissent: Should rephrase issue as “Is there a right to die with dignity/no pain?”
F. Equal Protection (Fn4)
EP  14th amendment (and 5th amendment)
Primarily intended to protect rights of newly-freed slaves (Slaughterhouse Cases)
SDP  “Rights”
EP  “People”
2 definitions of “Equality”:
Process: keep them equal each step of the way, regardless of outcome (Plessy)
Result: look to the end, do we need to treat them differently in order to be equal at the end? (Brown)
EP: Race Strict Scrutiny
___________________________

Gender Intermediate Scrutiny
___________________________

All Else Rational Basis
3 factors:
Immutability: Is it a trait you can’t change?
Political Power: does the group have power to challenge unfavorable laws?
History: How has society & law historically treated the classified group?
*fn4
*Should the above factors have “and” or “or” b/n them?
Race In Public Education Context:
Plessy v. Ferguson: USSC 1896
Facts: P = 7/8 white, 1/8 black: refused to sit with blacks. The state law said blacks and whites must segregate on railcars. The P challenged his “blackness” NOT challenging segregation.
Holding:
Process equality
Co-mingling MUST be Voluntary, NOT enforced by law
We can’t help it if blacks feel inferior
Separate but Equal
Brown v. Board of Education: USSC 1954
Issue: Does Brown stand for the idea that education is a fundamental right?
Facts: Black children want to attend white public schools.
Assumptions:
1. Segregation harms black children
2. *Schools are equal  tangibles
3. 14th Amendment covers education
4. Integrated schools help black children
5. education is important for ALL children
6. States control Education.
Overruled Plessy
Holding:
Result Equality
If state provides education, it must provide to ALL on equal terms
Segregation is not constitutional
Segregation is inherently unequal (relied on Expert Testimony!)
2 Equality Variables:
1. Economic  Brown held this as constant so it could deal with the race issue (Rational Basis)
2. Race (Strict Scrutiny)
How can we tell if a law classifies on the basis of Race? (Strict Scrutiny ONLY applies if it does)
Korematsu v. US: USSC 1944:
Japanese-American forced to relocate during WWII.
Law Classifies based on race (only Japenese nhad to relocate)
Holding: Relocating was necessary for national security
Why Korematsu is important:
Classified on Race
Law passed Strict Scrutiny
Creates Strict Scrutiny for Race Classification
US later acknowledged its mistake and apologized.
Constitutionalized fn4
*Compare: Hamdi – upheld detention without Due Process
*Compare Curtiss-Wright – President has inherent executive power in foreign affairs.

Govt = Burden S.S
-------------------------------
Pltf = Burden R.B.
-------------------------------
Palmore v. Sidoti: USSC 1984
Father sought custody of child because mom married a black man
Trial court granted the gather custody
Sup Ct Remanded
*Like Shelley  Court = State Actor that encourage prejudice
Washington v. Davis: USSC 1976
Vocab/Reading exam given to police applicants
Many blacks failed the test
Discriminatory impact from Neutral Law (ALL applicants must take the test)
Court If law is neutral, to classify based on Race and get Strict Scrutiny, the Pltf MUST show:
An overwhelming disparate impact, AND
Discriminatory Intent
Race in Affirmative Action:
Grutter v. Bollinger: USSC 2003
Michigan Law school puts a “+” for applicants of color for Diversity
Strict Scuritny  Compelling Government Interest + Narrow Tailoring
Holding:
Race may NOT be defining quality for applicant
Compelling Interest = Diversity
Narrow Tailoring = Program had Sunset Provision.

Affirmative Action Review:
Korematsu: Race Classification = OK if national security
Grutter: race may NOT be defining factor, but it is constitutional to consider it if the state wants.

FEDERALISM Or INDIVIDUAL LIBERTIES?

Let State decide whether to use race Applicant has right to have race considered

DIVERSITY Or EQUALITY?

NOT compelled by C Compelled by C

Gender Classification
Slaughterhouse Cases  14th amendment’s EP was supposed to be for newly freed slaves only.
Frontiero v. Richardson: USSC 1973
Statute  women can’ claim husbands as dependents unless they need wife for over ½ of support.
Court  Compared Gender to Race:
History
Immutability
Political Powerlessness
SOR: Strict Scrutiny!!
“Administrative convenience is not a compelling interest.”
Craig v. Boren: USSC 1976:
Statute  prohibits beer sale to men less than 21 and women less than 18
Court  There ARE differences b/n male and females:
Intermediate Scrutiny: Law must be:
Substantially related to achieving
Important government objective
Similar to “Undue Burden” from Casey (BOTH are intermediate SORs for WOMEN)
*Note: Courts do not like gender Stereotyping.
*Note: Courts usually uphold laws designed to Compensate for Past Discrimination.
Gender Examples:
Upheld Cases:
Califano v. Webster: USSC 1977
Women get higher benefits under the law
The law was designed to compensate for history of gender discrimination
Nguyen v. INS: USSC 2001:
Federal Law  dad must prove paternity in tests, mom is automatic (For Citizenship)
Statute’s Purpose = ensure child has a relationship with the dad and assumed there is an automatic relationship with the mom.
P in this case was ½ Vietnamese (mom) and ½ American (dad. Sex crime with a child, about to be deported.
Irony  Law designed to create relationship w/ dad, yet it blocks him from proving Paternity
Law assumes mom has immediate bond with child, but the mom abandoned him.
Invalidated Cases:
Orr v. Orr: USSC 1979
AL Law  only men pay alimony
Court  Women were stereotyped to be dependant upon men.
US v. VA – VMI USSC 1996:
VMI = all-male public university
Based on stereotypes
Purpose = “Diversity” + Tradition
Ct  “Diversity” as a man is constitutional if all are equal
VMI can’t prove diversity was its purpose because the Women’s College was NOT equal to the Men’s.
MI Univ for Women v. Hogan USSC 1982
All Female Public Nursing School
Based on stereotypes
G. Substantive Due Process + Equal Protection
Sexual Orientation:
Romer v. Evans: USSC 1996:
Amendment 2 of CO Constitution repeals all laws protecting gay/lesbian/bi as a minority.
Ct  Based on Animus of a single-named group.
If this had been a LAW  The People could overturn/changed by a 51% vote
Since it is an AMENDMENT  Requires 2/3 vote to overturn/change (too difficult)
(See Reitman and Entanglement)
Fn4: Carolene Products

SDP = RIGHTS:

FR1 = “Implicit in concept of ordered liberty”  S.S. (Strict Scrutiny)

FR2 = Abortion, Education  I.S. (Intermediate Scrutiny – Undue Burden)

OR = Ordinary Rights (States need not give)  R.B. (Rational Basis)

EP = PEOPLE:

A) Immutability EP1 = Suspect (Race)  S.S. B) History EP2 = Semi-suspect (Sex)  I.S. C) Political Powerlessness EP3 = Non-suspect (wealth)  R.B.

GENERAL RULE: Rights:

If SOR of SDP and EP are different  Use the HIGHER one

Depends on how narrow you define the Right

Exceptions? Gay Marriage = Sexual Orientation + Marriage: SO = EP3 = RB Marriage = EP1 = SS - If General Rule SS - If Exception  RB

Bowers v. Hardwick: USSC 1986
Court treated it like a SDP case
Sodomy is not a fundamental right  Rational Basis and Morality is a legitimate end”
Bowers was overruled by Lawrence v. Tx.
Lawrence v. Tx: USSC 2003:
Defined Right as “Privacy”, NOT “Sodomy”
Court treated it like a SDP case, NOT EP b/c it didn’t want to select a suspect class for gays.
Dissent  O’Conner:
Would have used EP and NOT overruled Bowers
Would have kept Sodomy “below the line” & require better justification than “Morality”
*Note: Court has NOT YET chosen an EP class for Sexual Orientation (Probably EP3)